vliepa GmbH general terms and conditions
I. Offer, conclusion of contract, written form
1. All deliveries shall be exclusively subject to the following terms and conditions. These terms and conditions shall also apply to subsequent orders even if no new agreement is reached on their applicability. The terms and conditions of the Buyer are hereby expressly excluded.
2. Our offers are always subject to change. Contracts and other agreements are binding only after written confirmation or unconditional delivery by us.
3. All agreements and collateral agreements as well as additions and alterations to existing contracts must be in writing.
II. Delivery, delivery periods, delay
1. Deliveries are made free domicile unless otherwise agreed.
2. Delivery periods are binding only after being confirmed by us in writing.
3. Compliance with binding delivery periods is dependent upon all documents and information to be supplied by the Buyer being received on time and upon compliance with agreed payment terms and other obligations of the Buyer. If these preconditions are not met, these delivery periods shall be extended appropriately; this does not apply in cases in which we are responsible for the delay.
4. If non-compliance with delivery periods is due to force majeure, e.g. mobilization, war, riot, terrorism, strikes, or similar events, the delivery periods shall be extended appropriately.
5. If we are responsible for the delay in the delivery and the Buyer demonstrably suffered a loss from the delay, the Buyer may claim compensation for each full week of the delay of 0.5%, but no more than 5% in total of the price for that part of the delivery which could not be usefully commissioned or appropriately put into operation or use as a result of the delay.
6. Claims for damages by the Buyer due to delayed delivery as well as claims for damages in lieu of performance in excess of the limits named in number 5 above are excluded in all cases of delayed delivery, even following the expiration of a deadline for delivery set by us. This shall not apply in cases of mandatory liability based on intent, gross negligence, or due to injury to life, body or health. No change in the burden of proof to the detriment of the Buyer shall be associated with this. The Buyer may rescind the agreement within the framework of legal provisions only if we are responsible for the delay in delivery.
7. The Buyer is obligated to inform us upon request within a reasonable period whether he will rescind the contract due to the delay in delivery or whether he demands delivery or claim compensation.
III. Delay in acceptance by the Buyer
If the Buyer delays in accepting the service and/or receiving the delivery he ordered and we have set an adequate acceptance period for our services and/or delivery, we are entitled to demand lump sum compensation amounting to 20% of the order value after the expiration of this acceptance period and in lieu of performance. Both parties reserve the right to prove that significantly more, less or no damage has occurred. These provisions regarding the lump sum calculation of damage also apply if, in the event of insolvency of the Buyer, the insolvency administrator uses its right not to fulfil the contract.
IV. Assumption of risk
1. Even where delivery has been agreed freight prepaid, the risk is transferred to the Buyer upon the arrival of the goods with the Buyer if the goods were shipped by us. If it is agreed upon that the Buyer will pick up the goods, risk is transferred to the Buyer upon the notification that the goods are available in our warehouse for collection by the Buyer.
2. If dispatch or delivery is delayed for reasons for which the Buyer is responsible or if the Buyer for any other reason delays in accepting the goods, risk will be transferred to the Buyer.
V. Liability for defective goods
1. All parts or services showing any defect within the period of limitation shall, at our discretion, be repaired free of charge, replaced or supplied anew, regardless of how long they have been in use, provided that the cause of the defect already existed at the time of transfer of risk.
2. Claims based on defects are subject to a limitation period of 12 months. This does not apply where longer periods are prescribed by law according to §§ 438, paragraph 1, No. 2, 479 paragraph 1 and 634 a. 1 No. 2 German BGB.
3. The Buyer must notify us immediately in writing of material defects.
4. If defects are reported, payments by the Buyer may be withheld only to an extent which is in proportion to the material defects which have occurred and only if the notice of defects is unquestionably justified. If a notice of defects is not justified, we have the right to demand compensation from the Buyer for expenses we have incurred.
5. We must first always be given the opportunity to remedy defects within appropriate reasonable period of time. If the subsequent performance fails, the Buyer shall have the right to rescind the agreement or reduce the level of compensation, regardless of any other claims for damages according to Sec. IX.
6. Claims on account of defects may not be brought in cases of only slight deviation from the quality agreed upon, in cases of only slight impairment in usability, in cases of natural wear and tear, or damage after the transfer of risk caused by faulty or negligent handling, excessive strain, unsuitable equipment or by special external influences not foreseen under the terms of the contract. Damage claims shall not arise in cases where the Buyer or third parties have performed improper modifications or repair work, or for damage resulting from such modifications or repairs.
7. Claims of the Buyer based on expenditure necessary for the purpose of the subsequent fulfilment, in particular transport, travelling, labour and material costs, are excluded insofar as the expenditure increases because the item delivered has subsequently been taken to a location other than the agreed delivery location, unless this relocation corresponds with the intended use.
8. In addition, Sec. IX shall apply to claims for damages (other claims for compensation). Any additional claims or claims of the Buyer other than those contained in this Section (V) against us or our vicarious agents due to defects are excluded.
VI. Retention of title
1. The delivery items shall remain our property until full payment of all claims against the Buyer to which we are entitled as a result of the business relationship, including claims from cheques and bills of exchange. In the event of breach of obligations on the part of the Buyer, in particular in the event of payment delay, we are entitled to demand surrender of the delivery item and/or to rescind the agreement, without setting a time limit; the Buyer shall be obligated to release the goods. The demand to release the delivery item does not constitute rescission of the agreement by us, unless we expressly declare such rescission.
2. The retention of title shall also continue to apply if individual claims of the Buyer are included in a current account and the balance is drawn and recognised.
3. The Buyer is entitled to sell, process or to install the reserved goods only in consideration of the following provisions and on condition that the claims according to number 5 are actually transferred to us.
4. The authority of the Buyer to sell, process or install the reserved goods shall end upon revocation by us in the light of the continued decline in the Buyer’s financial circumstances, and at the latest upon his suspension of payment or upon application for insolvency proceedings for his assets.
5. The Buyer shall hereby assign to us the claim with all ancillary rights from the resale of the reserved goods, including any balance claims.
6. As long as he complies with his payment obligations, the Buyer is entitled to collect the assigned claims. The collection entitlement shall cease upon revocation, at the latest upon payment default by the Buyer or upon significant decline in his financial circumstances. In this case we are hereby authorized by the Buyer to inform his Buyers about the assignment and to collect the claims. If requested, the Buyer is obligated to provide us with an exact list of the claims owed to him with names and addresses of the Buyers, amounts of the individual claims, invoice dates, etc. and to issue the necessary information to us for the enforcement of the assigned claims and to allow us to examine this information.
VII. Terms of payment
1. All of our invoices are due upon receipt. Payments will be considered punctual only if we have funds for value on the due date available in our account.
2. The Buyer is entitled to deduct a 2% discount for payments made within 10 days of the invoice date.
3. We accept bills of exchange and cheques only as conditional payment. We only accept bills of exchange according to previous written agreement. Costs incurred from the acceptance of bills of exchange and cheques shall be paid by the Buyer.
4. The Buyer may not offset any counterclaims disputed by us or not recognized by declaratory judgement. The Buyer is entitled to exercise a right of retention only if his counterclaim is based on the same contractual relationship.
VIII. Impossibility of performance, adaptation of contract
1. To the extent that it is impossible to carry out a delivery, the Buyer is entitled to demand compensation for damage, unless we are not responsible for the impossibility. However, the claim for damage by the Buyer shall be limited to 10% of the value of that portion of the delivery that was not able to put into proper operation on account of the impossibility. This limitation does not apply in cases of mandatory liability based on intent, gross negligence or due to injury to life, limb or health. No change in the burden of proof to the detriment of the Buyer shall be associated with this. The Buyer’s right to withdraw from the agreement is not affected.
2. To the extent that unforeseeable events according to Sec. II number 4 significantly change the economic significance or the contents of the delivery or considerably affect our operation, the contract will be appropriately adapted taking into account the principals of reasonableness and good faith. Where such an amendment is economically unreasonable, we shall have the right to cancel the contract. If we decide to use this right of cancellation, we shall be obligated to inform the Buyer immediately after realizing the consequences of the event, even if an extension of the delivery period was initially agreed upon with the Buyer.
IX. Other claims for compensation
1. We are not liable for breaches of duty due to slight negligence insofar as these do not affect contractually essential obligations or guarantees or relate to damage based on injury to life, body or health or claims according to the German Product Liability Act.
2. Insofar as we are liable for slight negligence, liability shall be limited to damage that is typical and foreseeable for this type contract.
3. To the extent that our liability is excluded or limited, this also applies to the liability of our legal representatives, employees and vicarious agents.
4. To the extent the Buyer is entitled to claim damage compensation according to Sec. IX, these claims can only be made within a cut-off period of 12 months following the time of delivery.
X. Miscellaneous
1. The place of performance for the Buyer’s obligation to pay is Brüggen.
2. If the Buyer is a merchant in accordance with the HGB [German Commercial Code], the place of jurisdiction for both parties is Nettetal.
3. German law applies exclusively to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
4. Should any provisions of this contract be or become invalid, this shall not affect the validity of the remaining provisions.
Last revised: 1 July 2008
vliepa GmbH, Heidhausen 81,41376 Brüggen