General Terms and Conditions

General Terms and Conditions of ElringKlinger AG
Max-Eyth-Str.2, 72581 Dettingen/Erms
General Terms and Conditions of Sale and Delivery
(October 2013)

 

I. General information

  1. These Terms and Conditions shall be part of all contracts entered into between us and the Buyer. They shall also apply if we do not explicitly refer to them in subsequent contracts. The Buyer's General Terms and Conditions shall not apply; we hereby expressly object to said Terms and Conditions.
  2. Addenda and amendments to contracts and these General Terms and Conditions shall require the written form in order to be valid. This shall also apply to any amendment to the written form requirement.

 

II. Delivery and packaging

  1. Unless otherwise agreed, delivery shall be made EXW INCOTERMS (actual version).
  2. Unless otherwise agreed, we shall be responsible for the packaging of the delivery items. Packaging costs shall be invoiced to the Buyer.
  3. The delivery period shall begin on conclusion of the Contract, but not prior to the provision of any documents, permits and approvals to be furnished if necessary by the Buyer or prior to the supply of other objects or receipt of any agreed down payment.
  4. The delivery period shall be extended in the event of force majeure, i.e. unforeseeable events beyond our control, such as industrial disputes, including, but not limited to, strikes and lock-outs, as well as business disruptions and delays in the delivery of essential materials, insofar as such impediments affect shipment of the delivery item. This shall also apply if these circumstances occur in relation to sub-suppliers. The extension of the delivery period shall be commensurate with the duration of such measures and impediments. The aforementioned circumstances shall also be deemed to be beyond our control if they occur during an already existing delay. The Buyer shall be immediately informed of such impediments.
  5. If we culpably fail to comply with the delivery periods, we shall be deemed to be in default only if the Buyer requests us to deliver again, setting a reasonable time limit. Claims for compensation for damages caused by delay shall be excluded in the event of simple negligence. If the Buyer intends to rescind the Contract and to assert a claim for damages in lieu of performance, the restrictions of Clause VII.1b shall apply.

 

III. Scope of delivery

  1. The scope of delivery shall be determined by the respective contract.
  2. We reserve the right to make changes to the delivery item due to technological improvements or to legal requirements, providing such changes do not alter the delivery item substantially and the Buyer can reasonably be expected to accept them.

 

IV. Terms of payment and set-off

  1. Unless otherwise agreed, invoices shall be payable without deductions within 14 days of date of issue.
  2. The Buyer shall have a right to set-off only if its counterclaims have become res judicata or are undisputed. The Buyer shall be authorized to exercise a right of retention only insofar as its counterclaim is based on the same contractual relationship.

 

V. Pricing

Where there are more than 8 weeks between contract conclusion and agreed delivery date, we shall be entitled to make corresponding price adjustments in the event of increases in material prices, wage costs or energy prices.

 

VI. Property rights and tools

  1. Cost estimates, conceptual designs, drawings and other documents shall remain our property. These documents may be made accessible to third parties only with our prior written consent.
  2. Where items are produced according to the Buyer's drawings, models, samples or other documents, the Buyer shall warrant that third-party property rights are not infringed.

 

VII. Warranty/Liability

  1. We shall be liable as follows for defects to delivery items:
    a) For a period of 12 months from transfer of risk, the Buyer shall initially be entitled to subsequent performance (repair or replacement at our option). Should the subsequent performance be unsuccessful on at least two occasions or be disproportionate, the Buyer may rescind the Contract or reduce the purchase price.
    b) Our liability as well as that of a legal representative or a performing agent shall be limited to cases of wilful intent or gross negligence. In the event of a breach of material contractual obligations, we shall be liable in accordance with the statutory provisions. Any claim for damages shall, however, be limited to damages that are typical for the Contract and foreseeable at the time the Contract is entered into. These provisions shall also extend to claims for damages in addition to performance and damages in lieu of performance, on whatever legal grounds, in particular on account of defects, the infringement of duties arising from an obligation or from a tortious act. They shall also apply in the event of claims for reimbursement of nugatory expenditure.
    c) Defects caused by natural wear and tear and incorrect assembly as well as minor divergences from the agreed quality shall, in particular, but not limited, be excluded from the warranty.
  2. If we make deliveries based on sampling, we shall warrant only the qualitative and dimensional characteristics of the sample approved by the Buyer.
  3. Claims for damages arising from tort shall be excluded, unless the damages have been caused by wilful intent or gross negligence. This shall also apply to acts by our vicarious and performing agents. In the event of injury to life, limb or health as well as in the event of product liability, we shall be liable in accordance with the statutory provisions.

 

VIII. Recourse

The Buyer's rights of recourse shall be deemed to apply only insofar as it has not entered into any agreements, with its customer, which go beyond the statutorily prescribed claims for defects.

 

IX. Retention of title

  1. We shall retain title to the delivery items until payment therefore has been made.
  2. In case the Buyer breaches the Contract, particularly in the case of delay in payment, we shall be entitled to demand that it surrender the delivery items and/or to rescind the Contract.
  3. The Buyer shall be entitled to resell the delivery items in the ordinary course of business; it shall hereby assign to us all receivables in the amount of the purchase price agreed between us and the Buyer(including value added tax) which accrue to the Buyer from the resale, irrespective of whether the delivery items are resold without or after processing. We accept the assignment. The Buyer shall be authorized to collect these receivables after their assignment. This shall not affect our authorization to collect the receivables ourselves. However, if this is the case, we are entitled to demand that the Buyer make known the assigned receivables and their debtors, provide all information necessary for the collection, submit the associated documents and inform the debtors (third parties) of the assignment.
  4. If the delivery items are processed or inseparably mixed with other objects that do not belong to us, we shall acquire co-ownership of the new object in proportion of the value of the delivery items to the other processed objects at the time of processing or to the other mixed objects. The Buyer shall hold the co-owned object in safe custody for us.
  5. The Buyer may neither pledge the delivery items nor assign them as collateral. In the event of seizures and impoundments or other dispositions by third parties as well as in the event of the institution of insolvency or composition proceedings against the Buyer´s property, it shall immediately inform us thereof and make all information and documents required for protecting our rights available to us. Enforcement officers or third parties shall be notified of our title.
  6. We , at the Buyer's request, undertake to release the collateral to which we are entitled to the extent that its value exceeds the receivables to be secured - providing they have not yet been settled - by more than 20%.

 

X. Venue and applicable law

  1. The venue for all disputes shall be Stuttgart/Germany. We shall also be entitled to sue the Buyer at the court of its registered office.
  2. The law of the Federal Republic of Germany shall apply exclusively without giving effect to the law of conflicts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

 

XI. Miscellaneous

Any assignments of the Buyer's rights and obligations arising from the Contract entered into with us shall require our prior written consent in order to be valid.



销售和交付通用条款
2013年10月版)


一、概述

1、本通用条款为买卖双方签订的所有合同的组成部分。买卖双方在后续合同中未明确说明的,通用条款亦应当适用。卖方在此明确表示不接受买方的通用条款。

2、合同及通用条款的补充和修改应当以书面形式确认后生效,本条款亦适用于书面形式要求的修改。

二、交付和包装

1、除另有约定外,货物以门到门交货的方式进行交付,但最低订货金额为人民币20,000元(未税价)。/

2、交期依订单约定为准。

3、交期在发生不可抗力后应当延期,即在卖方可控制之外的不可预见的事件,例如劳资纠纷,包括但不限于,罢工、停工,以及营业中断和基本原料的延迟 交付等影响交付的因素。此条款亦适用于下级供应商发生此类事件的情形。交货延迟期限为该等措施与障碍的持续期限。若前述情形发生在卖方既存的延迟交货中, 亦应当视为在卖方可控制的范围外。该等事件发生后,卖方应当立即通知买方。

三、交付范围

1、交付范围依订单约定为准。

2、卖方保留由于技术改进或法律法规要求而变更交付货物的权利,如果该等变更未在本质上改变交付货物,且在买方合理预期接受范围内。

四、付款方式和抵销

1、除另有约定外,买方应在收到货物之日当即进行全额付款。

2、买方仅能基于其反索赔为生效的判决或不存在任何争议时可以抵销。买方仅能基于同一合同关系提出反索赔时,才有权行使留置权。

五、价格

若合同签订日与约定的交货日期相差超过6个月的,由于材料价格、工资成本和能源价格的上涨,卖方有权调整价格。

六、所有权和工装

成本评估、方案设计、图纸以及其他文件的所有权应当属于卖方。只有经卖方事先书面同意后,方能披露给第三方。

七、保证/责任

1、卖方承担以下交付货物的缺陷责任:

a) 风险转移之日起12个月内,买方有权要求卖方履行后续义务(卖方自行选择修理或更换)。若经2次以上服务未能修复或修复后仍不合适的,买方有权解除合同或降低采购价格。

b)卖方及其授权代表、执行代理承担的责任仅限于故意或重大过失的行为造成的。卖方发生实质性违约时,应当按照法律法规的规定承担责任。任何损害赔 偿应仅限于双方合同特有的和合同生效时可预见的。这些条款同样扩展适用于依照法律规定的除履行义务外的和不履行义务的损害赔偿,尤其是产品缺陷、违反义务 或侵权行为引起的侵权责任导致的损害赔偿。不必要开支的索赔亦适用这些条款。

c)由于自然损耗、错误的组装以及双方质量约定中的细小差异导致的产品瑕疵应被排除在质保范围以外。

2、若卖方以样品形式发货,则卖方只保证符合经买方认可的样品的质量特性和尺寸形状。

3、卖方不承担侵权行为引起的损害赔偿,除非该侵权是由故意或重大过失导致的。该条款同样适用于卖方的代理人。若侵权行为产生人身损害或者产品责任,卖方按照法律法规的规定承担责任。

八、追索权

买方的追索权仅限于在买方未与其客户签订任何关于超出法律法规规定的缺陷索赔的协议时适用。

九、所有权保留

1、卖方保留交付货物的所有权直至买方将款项付清。

2、若买方违约,尤其是延迟付款,卖方有权要求买方退回交付货物和/或解除合同。

3、如果交付货物经过加工或与其它非卖方所有的货物混合且无法分割,卖方有权按交付货物与其他加工货物或混合货物的比例获得所有权。买方应当安全保管共有货物。

4、买方可能既不能抵押交付货物,也不能将交付货物转让给卖方作为抵押物。若交付货物被第三方扣押、扣留或处置的,以及卖方破产或其财产进入诉讼程 序的,买方应当立即通知卖方并提供所有保护卖方权利所需的信息和文件。买方应当将交付货物上存在卖方权利的事实通知执法人员和第三方。

5. 经买方要求且在买方尚未支付完货款的情形下,卖方应在抵押货物的货值超过提供担保的应收款项的20%后,将超出部分的抵押货物交付给买方。

 

十、管辖和适用法律

1、本合同履行过程中发生的任何争议,双方一致同意向卖方所在地的人民法院诉讼解决。

2、适用中华人民共和国的法律,但不包括其冲突法,且不适用《联合国国际货物销售合同公约》。

十一、其他

买卖双方合同中买方权利义务的转让,经卖方事先书面同意后生效。

本合同以中英文书就,如两个版本有矛盾之处,以中文版本为准。