General Terms and Conditions for Commercial Transactions
I. Offers and Conclusion of Contract
- Exclusively the following contractual terms apply between the Principal and Ames GmbH (hereinafter called the Contractor) in relation to all offers and orders. The Contractor’s offers are non-binding. The orders placed do not become binding until confirmed in writing by the Contractor.
- Any additions, amendments or subsidiary agreements are subject to written confirmation by the Contractor in order to become effective.
- The Contractor reserves the title to cost estimates, drawings and other written material. They must not be placed at the disposal of third parties.
II. Scope of Delivery Obligation
- The Contractor’s written confirmation of the order constitutes the criterion for the scope of delivery.
- Measurement data, weights, illustrations and drawings and other material constituting part of orders are only approximately applicable, provided they have not been expressly stated to be binding.
III. Price and Payment
- If nothing has been agreed to the contrary, the purchase price must be paid in cash no later than within 21 days of the date of the invoice without any deductions or within 8 days with a 2% discount. Bills of exchange will only be accepted in payment subject to special agreement and provided they are discountable. They will be credited on the day on which the equivalent amount is available in payment. If nothing has been agreed to the contrary, discount charges, stamp duty and collection fees are payable immediately in cash.
- In legal transactions with entrepreneurs, default interest at a rate of 8 percentage points above the basic interest rate will be charged in the event of default on payment.
- Upon failure to comply with the terms of payment or if the Contractor learns, after conclusion of the contract, of circumstances which reduce the credit standing of the Principal in banking terms, all claims will become payable immediately after a reminder has been sent, irrespective of the term of the bills of exchange accepted. In such cases, the Contractor has the right to require advance payment or the furnishing of security before performing deliveries or services still outstanding or to rescind the contract after expiry of a reasonable period of grace.
- The Principal is not permitted to withhold payments or offset them against claims of his own which are disputed by the Contractor.
IV. Delivery Terms
Deliveries shall generally be ex works. If deliveries are made by truck or by a forwarding agent, unhindered access must be ensured. Goods will be delivered to behind the first lockable door on the ground floor. Special services, such as carrying to other rooms or floors, unpacking or erection of goods or delivery to pedestrian zones, will be charged at an hourly rate of EUR 100. Goods must be accepted immediately.
For deliveries from our standard programme and for custom-made products scheduled to be collected, the risk of accidental destruction/damaging of the goods will pass to the customer upon readiness for shipment and notification of the same.
This is the case when the goods have the customary transportation packaging and are marked with the information required to identify the order.
If goods are shipped, this risk passes to the customer upon loading. If shipment is postponed for reasons for which we are not responsible or have not instigated, we will store these goods at the risk of the customer.
If shipment of the goods is delayed at the request of the customer, we have the right to charge warehouse costs at the rate customarily charged by forwarding agents for each month or part of a month, beginning on the date of notification of readiness for shipment.
Claims for any legal reason whatsoever based on damage to the goods upon delivery can only be asserted if an immediate report of the type and scope of damage and its possible cause is submitted, without prejudice to all the obligations of a recipient under transportation law.
V. Return of Goods
- For shipments returned due to wrong conduct by the Principal (e.g. an ordering error), a processing fee of 10% of the value of the goods will be charged but no less than € 20; in addition, a return shipment must be sent to Ames GmbH in the original or equivalent packaging. The Principal will be permitted to furnish evidence that no processing costs have been incurred at all or that they have been incurred at a significantly lower figure. Goods must be sent to Ames GmbH, August-Horch-Strasse 7-9, 56637 Plaidt. Correct postage must be prepaid for the shipment; if this is not the case, acceptance will be refused and the goods returned to the customer at the latter’s expense.
- In cases of warranty or guarantee claims, a copy of the sales invoice must be enclosed with the returned goods.
- Goods than can be resold (e.g. in the event of an error in ordering or supply) must returned in the original or equivalent packaging.
VI. Delivery Period
- The delivery period is deemed to be observed if the item for delivery has left the Contractor’s warehouse or the production plant before said delivery period expires or if the Principal has been notified of readiness for shipment by said time.
- In the event of labour disputes and upon the occurrence of unforeseen impediments outside the Contractor’s sphere of influence or in the event of impediments for which the production plant is responsible, the delivery period shall be extended appropriately. This also applies if the impediments arise during a delay that has already occurred.
- If the Principal incurs a loss due to a delay for which the Contractor is responsible, in particular if a fixed delivery date has been agreed with the Contractor, said Principal has the right to claim compensation, this being with exclusion of all further claims. This compensation will amount to ½ per cent for each full week by which the delivery date has been exceeded but no more than 5 per cent of the partial or total order which was not delivered on time due to the delay.
- If shipment is delayed for reasons for which the Principal is responsible, said Principal will be charged, as of 14 days after the date of notification of readiness for shipment, the costs of storage with third parties and, if the goods are stored with the Contractor, ½ per cent of the invoice amount per month. After granting a period of grace which expires without result, the Contractor has the right to make other use of the item scheduled for delivery and to supply the Principal after a reasonable extension of the delivery period.
- Compliance with the delivery period is subject to the Principal having met his obligations under the purchase agreement.
VII. Passage of Risk and Receipt of the Delivered Item
- The risk passes to the Principal upon surrender of the delivered item to the forwarding agent, carrier or collecting agent or upon transportation using the Contractor’s means of conveyance but no later than when the goods leave the warehouse of the Contractor or that of the production plant. At the Principal’s request and at his expense, the cargo will be insured by the Contractor against breakage and damage resulting from transportation, fire and water.
- If shipment is delayed for reasons for which the Contractor is not responsible, the risk will pass to the Principal from the date of readiness for shipment. At the Principal’s request, the Contractor has an obligation to insure the delivered item against damage. These costs will be payable by the Principal.
- Even if they have minor lettering defects, delivered items must be received by the Principal without prejudice to the rights under Section 7.
- Partial deliveries are permitted.
VIII. Reservation of Title
- The Contractor reserves the title to all delivered items until full payment of all claims held as a result of the business relationship with the Principal. In the event of a current account, all the goods subject to reservation of title shall serve to secure the balance of the claim. If the value of the collateral held by the Contractor exceeds the claims against the Principal by more than 25 % of the value of the goods subject to reservation of title, the Contractor has an obligation to release collateral to this degree at his discretion at the request of the Principal.
- The Principal is not permitted to pledge the delivered item or assign it as security. In the event of attachment or seizure or other action by third parties, said Principal must notify the Contractor immediately.
- If the Principal commits a breach of contract, in particular if he is in default on payment, the Contractor has a right to repossess the goods after issuing a caution and the Principal is under obligation to surrender said goods. The exercising of the right of reservation of title and the attachment of the delivered item by the supplier are not deemed to be rescission of the contract, unless the German Instalment Payment Act applies.
- The Contractor has the right to insure the delivered item against fire, water and other damage at the cost of the Principal, unless the Principal furnishes evidence of having taken out such insurance himself.
IX. Liability for Defects in the Delivery
- If nothing has been agreed to the contrary, the Contractor is only liable to the extent that said Contractor must repair or, at his discretion, replace free of charge all such parts as become unserviceable or of which the serviceability becomes significantly impaired within 12 months of the date of delivery (passage of risk) as the result of a circumstance occurring before the passage of risk. The requirements for the assumption of liability are defective design, material defects or poor construction. The Contractor must be given immediate written notification of the discovery of such defects. Replaced parts become the property of the Contractor.
- No liability will be assumed for damage resulting from natural wear and tear.
- The Principal’s right to assert claims for reason of defects is subject in all cases to a limitation period of 6 months as of on-time notification of defects but not before expiry of the warranty period.
- No warranty is given for damage caused for the following reasons: - unsuitable or improper use – defective assembly or taking into operation by the Principal or third parties – in the event of defective or negligent treatment of the delivered item, in particular in view of the instructions for operation supplied - in the event of excess loading – and if unsuitable operating aids and replacement materials are used.
- In consultation with the Contractor, the Principal must allow the required time and opportunity for performance of all repair work and replacements which the Contractor considers necessary at his reasonable discretion; if he fails to do so, the Contractor shall be released from liability for defects. Only in urgent cases in which operating safety is at risk, of which the Contractor is to be notified immediately, – or if the Contractor is in default on the remedying of the defect – does the Principal have the right to remedy the defect himself or have it remedied by third parties and to claim reasonable reimbursement of his costs by the Contractor.
- Out of the direct costs incurred by repair or supply of a replacement part, the Contractor will pay the costs of the replacement part including reasonable costs for removal and fitting, provided that the complaint is to be regarded as justified.
- A warranty for the replacement part and repairs will only be furnished in the same way as for the delivered item. The time of liability for defects in the delivered item will be extended by the length of the interruption of operation caused by the remedying work.
- If the Principal or third parties undertake alterations or repair work without obtaining the prior consent of the Contractor, any liability for the consequences resulting from the same will be excluded.
- The Principal does not hold any further claims, in particular a claim to compensation for damage not incurred to the delivered item itself.
- Second-hand machines are excluded from all warranties. The machine is deemed accepted when taken over. Neither does the Contractor provide a warranty for hidden defects. Such a warranty period may only apply if the Contractor can be proved to have been grossly negligent.
X. The Principal’s Right to Rescission of the Contract
- The Principal can rescind the contract if it finally becomes impossible for the Contractor to render full performance before passage of risk. The same applies to the Contractor’s inability to perform. The Principal is also entitled to rescind the contract if, for an order of like items, the delivery of a number of the items becomes impossible and he has a justified interest in refusing partial delivery. If this is not the case, the Principal can reduce the consideration accordingly.
- The Principal is entitled to rescind the contract if default on delivery as defined in Section 4 of the Conditions of Sale and Delivery applies and if the Principal grants the defaulting Contractor a reasonable period of grace subject to the express statement that he will issue a caution relating to acceptance of performance after expiry of this period and said period then expires without result.
- If impossibility of performance arises while there is default on acceptance or through the fault of the Principal, the latter shall remain under obligation to pay the consideration due.
- The Principal also has a right of rescission if the Contractor through his own fault allows expiry without result of a reasonable period of grace which he has been allowed for the remedying or repair of a defect for which he is responsible as defined in the Conditions of Delivery.
- The Principal’s right of rescission also applies in the event of impossibility and inability of repair or replacement by the Contractor.
- All other more extensive claims by the Principal are excluded, in particular claims to conversion, termination or reduction and to compensation of damage of any kind, including damage which is not incurred to the delivered item itself.
XI. Liability for Secondary Obligations
If, through the fault of the Contractor, the supplied item cannot be used as per contract by the Principal as a result of a lack of recommendations and advice or defective provision of the same or other contractual secondary obligations before or after conclusion of the contract, in particular instructions for operation and servicing of the delivered item, the provision of Sections 7 and 8 shall apply accordingly with exclusion of other claims by the Principal.
XII. The Supplier’s Right of Rescission
The contract shall be appropriately adapted if unforeseen events as defined in Section 4 of the Conditions of Sale and Delivery occur, provided that such events significantly change the financial significance or content of performance or have a significant impact on the supplier’s operations and if impossibility of performance subsequently occurs. If this is not economically feasible, the Contractor has the right to rescind the contract in whole or in part. The Principal does not hold any claims to damages due to such rescission. If the Contractor wishes to exercise a right of rescission, he must notify the customer immediately after recognising the scope of the event; this also applies if an extension of the delivery period had initially been agreed with the customer.
XIII. Legal Venue
If the Principal is a registered trader, a legal body under public law or a public fund, the place of performance for payment and the exclusive legal venue – including that for complaints in summary proceedings based on documentary evidence and bill of exchange proceedings – shall be Andernach/Rhine, the Contractor’s headquarters, for both parties and for all present and future claims resulting from the business relationship.
Ames GmbH, August-Horch-Strasse 7-9, 56637 Plaidt