Delivery and Payment Conditions of VICTOR Europe GmbH
1. Application of these provisions
1.1. The entire business relationship, including the future business relationship, between us and the customer shall be governed exclusively by these Conditions of Sale and Delivery. Terms that differ from these Terms and Conditions of Sale and Delivery shall only take effect by express agreement. The customer's terms and conditions of purchase or other terms and conditions of business will not be accepted.
1.2. If there is a master agreement between the customer and us, these Conditions of Sale and Delivery shall apply both to such master agreement and to the individual order.
2. Offers, product descriptions
2.1. Our offers are subject to change and are non-binding until a contract has been concluded.
2.2. Orders placed by the customer are binding for the customer. A contract shall be formed when we acknowledge the order in writing or when we deliver the goods/perform the work and services.
2.3 Details provided verbally and those to be found in our documents do not imply any warranties. Measurements, descriptions of the work and services to be performed and other details concerning the quality and condition of the goods to be delivered are for purposes of specification and shall not be construed as a warranty. We also give no warranty for the characteristics of specimens or samples. If the materials we are to use are specified by contract, we only guarantee their compliance with the specifications, but not that they are suitable for the contractual purpose. We are only obliged to issue warnings if such materials are obviously unsuitable.
3. Delivery date, delivery
3.1. Our delivery obligation and the delivery period are subject to the proviso that our own suppliers effect proper, prompt and complete delivery. Delivery dates and periods are approximate. If the customer fails to clarify all order details in good time or if the customer fails to carry out all advance work in good time, the delivery dates shall be extended accordingly. Delivery dates are deemed to be met on notification that the goods are ready for shipment.
3.2. We are entitled to make partial shipments provided the customer can be reasonably expected to accept them.
3.3. The customer shall check and receipt the delivery note. Any objections must be notified to us in writing without undue delay. Otherwise the receipted delivery quantity is deemed to be accepted. Differences of up to 10%, whether more or less, in the ordered quantities must be accepted by the customer as being in accordance with the contract.
3.4. Delays in delivery caused by business disruptions, official measures or force majeure shall result in a reasonable extension to the delivery period. The same shall apply in the case of delays in delivery at our suppliers caused by the above-mentioned events. Industrial action including strikes and lawful lock-outs in our business or at our suppliers are also cases of force majeure. If such events subsequently make delivery impossible or unreasonable for either of the Parties, both Parties shall have the right to rescind the contract.
3.5. If the customer suffers loss or damage as a result of a delay in delivery for which we are at fault, the customer may demand compensation up to a maximum of 5% of the value of the affected part of the total delivery. In the case of a delay in delivery, after setting a reasonable additional period in writing, the customer may withdraw from the contract if performance is not effected within such additional period. Liability in case of delay or impossibility is regulated in clause 9 (Liability).
4. Shipment and passing of risk
4.1. The goods shall be delivered from our warehouse in Horst. We shall arrange for shipment to the customer in the customer's name and at the customer's risk. This shall also apply if, on the basis of individual agreements, we bear the costs of transportation and/or insure transportation or assemble or set up the delivered item at the customer.
4.2. At the request and expense of the customer, we shall take out transport insurance. With regard to the selection of the transport insurer, we shall be liable only for our own customary care.
4.3. Delivery items reported as ready for shipment must be called off immediately when the delivery date is reached. If shipment is delayed for circumstances for which the customer is responsible, the customer shall be in default on the date of notification that the goods are ready for shipment. The risk thus passes to the customer. We shall then be entitled to store the goods at the customer's risk and expense.
4.4. If the consignment to the customer is not stamped by us, the recipient is obliged to pay the freight on delivery. If we are obliged to pay the transport costs as a result of an individual agreement, the customer may in such case deduct the freight it has paid when settling the invoice. If we are obliged by individual agreement to pay the transport costs, this applies at the most to the distance between our plant and the destination stated in the confirmation. Every increase in the freight costs caused by a subsequent change in the kind of transportation, transportation route, destination or similar circumstances affecting the freight costs shall be borne by the customer. In the case of deliveries to locations situated nearer than stated in the confirmation, the freight shall be paid by us up to the actual destination at the most in accordance with the aforementioned principles.
5. Prices and price changes
5.1. Prices are ex our warehouse in Horst plus the value added tax applicable at the date on which the contract is concluded. Subsequent changes to the scope and date of the delivery by the customer entitle us, if we accept such changes, to make a reasonable adjustment to the price.
5.2. We shall charge the customer additionally for packaging at cost. Disposal costs for packaging material which are unavoidably incurred by us on the basis of relevant statutory regulations shall be charged to, and paid by, the customer.
5.3. If the statutory value added tax is increased between the date on which the contract is concluded and actual delivery, the agreed gross purchase price shall be raised correspondingly.
5.4. If the customer purchases the goods from us at list price and if the list price differs between conclusion of the contract and actual delivery, the agreed purchase price shall be adjusted correspondingly. Any agreed deductions shall be taken into account also with regard to the adjusted purchase price. If the purchase price agreement is not based on the list price, we are entitled make a reasonable adjustment to the purchase price later if the cost factors for the goods or other agreed services increase by a not inconsiderable amount. If such a price adjustment results in a considerable price increase, the customer is entitled to withdraw from the contract.
6. Terms of payment, offsetting and right of retention
6.1. Payment shall be effected within 10 days after the goods are made available and invoicing less 3% discount or within 30 days after the due date and receipt of the invoice or after receipt of the counterperformance on a net cash basis. In the case of a shipments on a cash on delivery basis, the cash on delivery costs shall be borne by the customer. Partial deliveries may be charged separately.
6.2. For the purpose of fulfilment and determining whether payment has been made within the prescribed period and whether any agreed discounts are due, the date of receipt on our bank account is the relevant date.
6.3. We are not obliged to accept cheques and bills. Payment by cheque and/or bills shall be effected solely by way of performance.
6.4. Even if a certain time has been agreed for payment, we may demand the immediate settlement of all claims and/or advance payment or suitable collateral before we effect delivery, if a significant deterioration in the customer's income and financial situation has occurred or if this is expected in the future on the basis of objective facts. In the case of a deferral or agreement on instalment payments, all claims against the customer shall become immediately due and payable if the customer finally refuses to make a payment or is more than 14 days in default in respect of a due payment. This shall not apply if the arrears amount to less than 10% of the outstanding claims.
6.5 If the customer is in default, we may demand interest on the outstanding amount of 8 percent above the base rate (Sec. 247 BGB) and a share of the costs per reminder of EUR 2.50 without prejudice to further claims.
6.6 The custom1er may not set off counterclaims unless the customer's claims are undisputed, respected or are the subject of final, unappealable court judgments. Furthermore, the customer may only exercise a right of retention if the customer's counterclaim is based on the same legal relationship.
7. Responsibility for defects
7.1. The customer shall, at its expense, examine the delivered goods without undue delay and shall inform us without undue delay in writing of any defects, incorrect deliveries, obvious incorrect deliveries that cannot be accepted or quantity shortfalls. A seven-day preclusive period from receipt of the delivery applies to the notice. Hidden defects must be reported to us without undue delay but latest after seven days in writing after they are discovered. If we examine defects that are the subject of a complaint, this does not constitute a waiver of the assertion of delay with regard to the complaint.
7.2. Quality defects of a partial delivery do not entitle the customer to reject the rest of the quantity bought unless the customer can prove that it is unreasonable to expect it to accept only a part of the delivery having regard to the circumstances.
7.3. Damage caused by external influence, improper treatment, defective operation, normal wear or corrosion are excluded from the warranty.
7.4. If any goods are defective at the time of the passage of risk, we will either supply a replacement free of charge or repair the defects, as we may choose. If we are set a deadline for supplying a replacement or repairing the defects and negligently allow this deadline to expire, if the attempt to cure the breach of contract has finally failed, if we refuse to cure the breach of contract or if this should prove to be impossible for ourselves or unreasonable for the customer, the customer may terminate the contract or claim a reduction in price. If the defects are only slight and the customer is able to make use of the goods without suffering any disadvantages, the customer shall only be entitled to a reduction in price. This right shall be limited to the part delivery affected, as long as such a limitation is not unreasonable for the customer due to the nature of the goods. If the specified volumes are not achieved, the customer may only claim a reasonable reduction in price once the attempt to rectify the defects has failed. This does not apply if the parameters for performance have been expressly guaranteed or it is not unreasonable for the customer to accept the goods under the given circumstances.
7.5. Claims under warranty become statute-barred one year after the statutory limitation period starts to run. The limitation period shall not be affected by the provisions in the two foregoing sentences in the event of delivery recourse claims pursuant to ss. 478 and 479 of the German Civil Code (BGB). Nor shall these provisions have any bearing on claims for damages in the event of death, personal injury or damage to health caused by a defect or under the Product Liability Act. Nor shall they restrict other claims for damages under warranty in the case of gross negligence, deliberate acts or the breach of fundamental contractual obligations on our part (for an explanation of the "term fundamental contractual obligations" see clause 9 "Liability").
8. Retention of title
8.1. We shall retain title in all delivered goods (conditional goods) up to complete payment of all our claims existing at the date of conclusion of the respective contract arising from the business relationship with the customer. We shall also retain title in the conditional goods up to complete payment of our future claims.
8.2. Pledges or transfers by way of security of the conditional goods to third parties and the assignment or pledging of related expectant rights. In the case of attachments and seizures by third parties including the assertion of liens such as lessors' liens and other impairments of our security rights, we must be notified immediately. The costs of intervention by us shall be borne by the customer unless they are recoverable from the respective third party.
8.3. If the customer acquires the conditional goods for the purpose of immediate resale, the customer is entitled to sell them in the ordinary course of business. If the conditional goods are not intended for immediate resale, they may not be resold without our previous consent. A resale is also not permitted if the claim that thereby arises is caught by earlier dispositions of the customer for the benefit of third parties, for example by a blanket assignment. The claims, together with all ancillary and security rights, arising from the sale of the conditional goods are now already assigned to us in full with effect from the date on which they arise. We hereby accept the assignment. If conditional goods are sold together with other goods, the assignment shall be effected in the amount which we charged the customer pro rata for the conditional goods in question. In the event that we are only co-owner of the conditional goods, the assignment shall be in the amount which corresponds to the value, invoiced by us to the customer, of the conditional goods delivered by us and included in such co-owned goods and forming the basis for the co-ownership share. All assignments shall have rank first for us. If the customer places the claims from a resale of the conditional goods into a current account relationship with its buyers, the respective acknowledged balance claims and the final balance claims shall be assigned to us insofar as they include individual (partial) claims which would have been assigned under the above provisions if they had not been claims that had to be put into the current account. These claims or parts of claims may not be assigned, pledged or encumbered in any other way.
8.4. The customer may collect the claims for itself in the normal course of business as long as it meets its payment obligations to us. The claims may not be assigned. This does not apply to assignments for the purpose of collecting receivables by way of factoring if at the same time an obligation is imposed on the factor to bring about counterperformance in the amount of our share of the receivables directly to us as long as we have claims against the customer.
8.5. The customer's right to resell the conditional goods and the right to collect claims are extinguished in the following cases: the customer is more than one month in default in payment; the customer stops making payments; a cheque or bill protest at the customer (if we are in any way beneficiary of this cheque or bill); attachment or seizure of the conditional goods; opening of insolvency proceedings or court or out-of-court composition proceedings in respect of the assets of the customer. We must be informed of the above events without undue delay. A list of the existing conditional goods shall be sent to us. The conditional goods must be stored separately and surrendered to us without delay upon demand. We are also entitled immediately to collect the claims assigned to us. We must be informed without delay of the assigned claims together with their composition, amount, the date of creation, names, surnames and addresses of third-party debtors. This shall also apply to all other information required for the order and collection of the claims. The third-party debtors must be informed by the customer of the assignment without undue delay. The customer shall issue a deed of assignment to us upon request. The moneys received after the extinguishment of the right of collection in respect of claims assigned to us shall be accepted on a fiduciary basis up to the amount of all secured claims and paid to us immediately or collected on a special account designated "Money held for VICTOR Europe GmbH on a fiduciary basis". The customer agrees with us that the money so accepted is our property. The customer now already assigns claims arising from the above-mentioned account to us. We accept this assignment.
8.6. After withdrawal from the contract or after we have set a reasonable period under Sec. 323 BGB and no payment has been made by the end of such period, we are entitled to sell the goods we have taken back without any restriction. The proceeds of sale shall be credited to the customer. Reasonable costs for collecting the goods as well as reasonable processing and selling costs are deductible from the proceeds. The salaries of our employees used in this connection shall be taken into account on a pro rata basis. Sales costs shall be fixed at no more than 25% of the proceeds of sale. However, the maximum amount that will be credited is the amount that a business of our trading level would normally pay as purchase price for the conditional goods that are taken back having regard to their state at the time of their return and their location. In the case of goods manufactured by us, the maximum amount that will be credited is our immediate cost price disregarding administrative and selling costs. The credited amounts shall be set off against our claims until the latter are extinguished.
8.7. The customer shall, at its own cost, adequately insure the conditional goods at reinstatement value to the usual extent and in any event against fire, storm, water and theft. Upon request, it shall provide us with proof of insurance cover. The customer hereby assigns to us its claims against the insurance company and/or other third parties in connection with the conditional goods in the amount of the share attributable to our conditional goods. We hereby accept the assignment. The other provisions agreed on in this retention of title clause shall apply correspondingly.
8.8. If our secured claims are more than 110% secured – not merely temporarily – by conditional goods and/or assignments or other securities, we shall, at the request of the customer, release securities up to the above limit at our election. The valuation of the securities shall be based on the realisable proceeds from the sale of securities. However, in no cases shall a higher value be taken than the value that is credited by us to the customer according to the above rules in the case of a return or collection of a claim. Claims shall be valued and if appropriate discounted in accordance with the principles of proper bookkeeping. The customer shall, upon request, provide us with the information required for such valuation without undue delay.
Claims of any nature for compensation which fall within and outside of the scope of liability for defects, which are based on late performance or the inability to give performance, the provision of inaccurate advice, any default in the execution of the agreement, an infringement of any contractual obligations, any unauthorised conduct or any other legal grounds, and in particular also in the event of damage which is not caused to the subject-matter of the delivery shall be excluded. These exclusions of liability do not apply
-in the event of intent or gross negligence of our directors and employees
-in the case of breaches of quality and durability warranties
-in the case of injury to life, body or health, as a result of damaging action
-if liability is incurred in accordance with the Produkthaftungsgesetz (Product Liability Act)
These exclusions shall further not apply in the case of infringement of fundamental contractual obligations. In this case liability shall be limited to compensation for normally foreseeable damage, if there is no intent or gross negligence on our part. “Fundamental contractual obligation” means any obligation which must be fulfilled for the contract to be properly performed at all, and which the Customer is able to depend on as being properly observed.
10. Cross-border selling
Due to possible different regulation, a reselling into other countries needs our confirmation in advance.
11. Place of performance, place of jurisdiction, applicable law
11.1. Place of performance for payment and delivery of the goods is Horst.
11.2. With customers who are business persons, legal entities under public law or special funds under public law, Hamburg is agreed on as the place of jurisdiction.
11.3. German law shall apply exclusively. UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
12. Data protection
We are entitled to process and store the data on the customer received in connection with the business relationship – even if such data come from third parties – within the meaning of the Federal Data Protection Act and to have the same processed and stored by third parties instructed by us.