Terms and Conditions of Sale and Delivery
L I N K E R I n d u s t r i e - T e c h n i k GmbH
Art 1 Scope of the Terms and Conditions
1. All deliveries, services and offers of the Seller shall be governed by these Terms and Conditions only. They shall therefore also expressly apply to all future business relations between the parties hereto even if they should not be expressly agreed once more. These Terms and Conditions shall be deemed to have been accepted at the latest on delivery being taken of goods or services. Counter-confirmations of the Buyer making reference to his terms and conditions of business or purchase are therefore hereby rejected.
2. Any deviations from these Terms and Conditions shall only be effective if confirmed in writing by the Seller.
Art. 2 Offers and Conclusion of Contracts
1. Offers of the Seller are without engagement. In order to be legally effective, declarations of acceptance of all orders must be confirmed by the Seller in writing, including also by telex/telefax; the same shall also apply to additions, amendments or any ancillary agreements.
2. Drawings, illustrations, dimensions, weights or any other technical data shall only be deemed binding if expressly agreed as such in writing.
3. The Seller’s sales employees are not authorised to make any oral ancillary agreements or to give any oral warranties which go beyond those contained in the written contract.
Art. 3 Prices
1. Invoicing of prices will be done at the prices valid on the day of delivery. Any additional goods or services will be additionally invoiced.
2. The Seller reserves the right to make price changes during the term of a contract if there are sufficient grounds for doing so.
3. Except as may be agreed otherwise, prices are quoted ex our plant and exclusive of packing, freight, customs and insurance and subject to the addition of value added tax.
Art. 4 Time of Delivery
1. Any times or periods of delivery named by the Seller shall not be deemed binding. Claims for compensation on grounds of any delay in delivery are barred.
2. The Seller has the right at any time to make part-deliveries or provide part-services.
Art 5 Passing of Risk
1. The risk shall pass to the Buyer as soon as the consignment has been handed into the custody of the person effecting transport, regardless of whether that person is one of our servants and assistants or a third party, or has otherwise left our premises for purposes of delivery. If dispatch should become impossible though no fault on our part, the risk shall pass to the Buyer on notification to him of readiness for dispatch.
Art. 6 Warranty
1. Warranty shall be governed by the law of contracts for work and services.
2. Defects must be notified by the Buyer within 8 days in writing. Replacements will only be furnished for such goods as are evidently unserviceable. All other claims for compensation, loss of profit, earnings and other expenses are barred.
3. Defects which despite careful inspection cannot be discovered within the aforesaid time must be notified immediately after discovery, though not later than 6 weeks from receipt of the goods, and any processing of the goods must be discontinued.
4. The Buyer must give the Seller the opportunity to satisfy himself of the justification of the notice of defects and, if so requested, must place the goods complained of at the Seller’s disposal. The Seller shall have no liability for defects caused by the Buyer submitting the delivered goods to unsuitable processing or treatment; because of their great sensitivity, the liability for sieves shall end before the start of use at the latest.
Art. 7 Current Account Clause/Extended Reservation of Title
1. The Seller reserves title to the goods until all claims of the Seller against the Buyer which may exist now or in future and on any legal grounds whatsoever have been settled. This shall apply also and even if individual or all claims of the Seller are placed on current account and a balance is drawn and recognised.
2. The Buyer is only entitled to resell goods which are subject to our reservation of title (“reserved goods”) in the ordinary course of business if he now and hereby assigns to the Seller all claims which accrue to him against customers or third parties through resale of the reserved goods. If reserved goods are resold unprocessed or after processing or combination with items which are the exclusive property of the Buyer, the Buyer now and hereby assigns to the Seller the full amount of the claims accruing from resale. If reserved goods are resold by the Buyer after processing or combination with goods not belonging to the Buyer, the Buyer now and hereby assigns to the Seller the claims arising from resale in the amount of the value of the reserved goods together with all ancillary charges. The Seller accepts the assignment. The Buyer is authorised to collect such claims even after assignment. This shall be without prejudice to the right of the Seller to collect the claims himself, but the Seller undertakes not to collect such claims himself for as long as the Buyer fulfils his payment and other obligations in a due and proper manner. The Seller may demand that the Buyer inform him of the assigned claims and the parties by whom they are owed, provide him with all particulars needed to make collection, furnish the corresponding documents to him and notify the owing parties of the assignment.
3. Any processing or treatment of reserved goods shall be done by the Buyer on the Seller’s behalf without this giving rise to any obligations on the part of the latter. In the case of processing, combination or mixing of the reserved goods with other goods not belonging to the Seller, the Seller shall have co-title to the new item so created in the same proportion as that between the value of the reserved goods and the other goods involved at the time of processing, combination or mixing. Should the Buyer acquire sole title to the new item, it is agreed between the parties to this present contract that the Buyer shall grant the Seller co-title to the new item in a share proportionate to the value of the reserved goods and shall preserve the same for the Seller free of charge. 4. If the value of the security furnished exceeds the value of the secured claims by more than 20%, the Seller shall, if so requested by the Buyer, have a duty to release securities to that extent.
Art. 8 Payments
1. Unless agreed otherwise, invoices of the Seller are due and payable 30 days after issue without any deduction and without any costs or expenses for the Seller. The Seller shall have the right, any instruction of the Seller to the contrary notwithstanding, to credit payments of the Buyer first towards the older debts of the latter. Should any costs and interest have already accrued, the Seller shall have the right to credit payment first towards the costs, then towards the interest and finally towards the principal.
2. Payment shall only be deemed to have been made when the Seller is able to dispose of the amount in question and when a cheque or bill of exchange has been honoured.
3. Should the Buyer default, the Seller shall have the right to charge interest from the time concerned at the rate charged by the commercial banks for open borrowings on current account plus value added tax at the statutory rate.
4. Should any circumstances come to the Seller’s knowledge which cast doubt on the Buyer’s creditworthiness, and in particular if the latter should have failed to honour a check or bill or if he should cease payments, the Seller is entitled to declare the whole of the amount still owing due and payable immediately, even if he should have accepted cheques. In this case, the Seller shall also have the right to demand payment in advance or to be furnished with security.
5. Even where defects or counterclaims are asserted, the Buyer is only entitled to make offset, to withhold payment or to make a reduction in payment reduce the payment owed if the counterclaims have been finally and absolutely established at law or are undisputed. The customer is also entitled to withhold payment on account of counterclaims arising from one and the same contract.
Art. 9 Limitations of Liability
1. Claims for compensation on grounds of breach of an obligation, culpa in contrahendo or tort, whether against the Seller or his servants and assistants, are barred except in cases of wilful intent or gross negligence. The same shall also apply to claims for compensation for breach of contract, though only insofar as compensation is demanded for indirect loss or damage or consequential damage and hidden defects, except where the liability derives from a warranty intended to safeguard the Buyer against the risk of such loss or damage. All liability shall be limited to the amount of loss or damage foreseeable at the time of conclusion of contract.
Art. 10 Applicable Law, Legal Venue, Partial Invalidity
1. These Terms and Conditions and the entire legal relationship between the Seller and Buyer shall be governed by the law of the Federal Republic of Germany.
2. Where the Buyer is a registered trader within the meaning of the German Commercial Code or a legal entity under public law, the exclusive legal venue for all disputes arising directly or indirectly from the contractual relationship shall be Kassel.
3. Should any of the provisions of these Terms and Conditions or a provision of any other agreement be or become invalid, this shall have no effect on the validity of all the other provisions or agreements.
