General Terms and Conditions for Deliveries and Services of Viereck & Co. (GmbH & Co. KG)

In General
The below mentioned conditions apply to all our deliveries and services. Other conditions are only binding to us if confirmed in written. Separate additional service conditions apply for service and repair work. There are additional extra contract terms for ceded software which will apply – also if being part of a product delivered by us.

 


 

I. Offer

1. Our offers are without obligation, estimates are not binding and – if not expressively agreed otherwise – involve charges. Dimensions, packing sizes, weight, photos, simulation results and drawings are only binding for the construction if expressively confirmed in written.


2. We retain title and copyright in all these estimates, drawings and other documentation. It may not be used in any other way, in particular it may not be duplicated or made available to third parties.

 



II. Prices


1. If not agreed otherwise the invoicing is made on basis of prices valid at date of delivery.


2. The prices are to be understood – if not mentioned otherwise in the offer – for deliveries and services ex work, excl. packing, transport, insurance, installation and commissioning plus VAT valid at time of delivery.


III. Delivery

1. Periods and dates of deliveries are only binding if confirmed in written. In case of any doubt the delivery date mentioned in the order acknowledgement is valid. The time of delivery starts at date of contract agreement but not before the existingparticipation duties of the ordering party have been fulfilled, especially presentation of required documents by the contractor, any other provisions, permissions, approvals and in case agreed payments on account resp. opening of letter of credit. The agreed dates are understood to be in time at date of advice of readiness even if the goods cannot be delivered resp. services cannot be rendered in time without our negligence.


2. In case of  non-compliance with delivery dates because of force majeure and other extraordinary circumstances f.e. war, terror attacks, import and export restrictions, industrial disputes also those affecting suppliers, the agreed delivery time is extended in a reasonable way. This also refers if the interferences occur at a time we are delayed.


3. In case of a negligent non-compliance with a binding delivery date because of any other reason mentioned under Clause III.2, the ordering party may resign from contract after the expiration of a reasonable time-limit fixed in written.


4. Far-reaching claims of the ordering party resulting of this delay, especially a far-reaching claim for damages, are excluded in the scope mentioned under Clause VII.


5. If the dispatch should be delayed as per request of the orderer, we reserve the right to charge the actual costs arising from the storage or 1% of the invoice amount for each started month (subject to prove the considerably lower costs). Upon futile expiration of a reasonable time-limit we reserve the right to resign from contract. The costs having occurred hereof to us will be charged to the ordering party.


6. Part deliveries and corresponding invoices are admissible.

 


 

IV. Passing of Risk / Transport

1. The delivery is made “ex works”, if not expressively agreed otherwise.

 

2. If  the orderer requests the dispatch of the goods to another place, the mode of transport is always according to our judgement if not otherwise instructed. A transport insurance will only be signed upon request and for the account of the ordering party.

3. Spare part deliveries and returns of repaired goods are carried out – as far as these are not concerned of property damage liability – by charging reasonable transport and packing charges plus expenses for the services rendered by us. Returns to us as well as consignments for repair – beyond property damage liability – have to be made on principle “free to the door”.

4. The dispatch of the delivery subject is carried out for account and risk of the ordering party. When passing the goods to the forwarders or a transport company but latest with the departure of our warehouse or production premises the risk passes to the ordering party, also in case of delivery “free destination”. In case the dispatch is delayed because of the conduct of the orderer, the risk passes already to the ordering party at date of advice of readiness.

5. In case the transport is delayed because of circumstances which are beyond our power, the risk passes to the orderer at date of advice of readiness.

 

 



V. Warranty


1. All claims of the customer become time-barred 12 months. The before mentioned is not valid as far as the law acc. to §§ 438 Para.1 No. 2 (Buildings and Parts for buildings) and § 634a (Deficiency of building) BGB is prescribing longer time-limits.


2. The limitation for property damage liability begins at commissioning of the product, for products of the vehicle and motor industry at date of making use of it, i.e. for first equipment at first admission, in all other cases at installation but in any case latest six months after delivery of the product (passing of risk) or after advice of readiness in our works.


3. In case of a property damage within the limitation - if the reason is already present at date of passing the risk – we reserve the right to either clear the defect or to deliver a faultless product. The claimed product is to be dispatched to us or to the nearest approved service point for repair. The costs for the most convenient and economic delivery/return to/from the previously agreed delivery address of the orderer within inland are on our account provided the claim is proved to be justified. The clearance of deficiencies is carried out by replacing or repair the defective products in our premises. The clearance of deficiencies in situ is only made within the scope of special agreements according to our valid service terms.


4. The warranty obligation does not apply if the product is modified by a foreign party or by the installation of parts of a foreign manufacturer except the deficiency is not resulting from the modifications and if instructions for the dispatch, packing, installation, treatment, use or maintenance are not followed, or if a faulty installation resp. commissioning via the orderer or a third party had been done.


5. Unaffected wear and damage by improper treatment are excluded from warranty. In particular we are not liable for modifications of the condition or the operation mode of our products resulting from faulty storage or unsuitable operation means as well as climatic or other influences. The warranty does not cover any deficiencies based on  construction faults or the choice of unsuitable material so far the ordering party has in-structed the construction or material although we have given advice to them before. We do not warrant for parts provided by the ordering party.


6. The orderer has to give the required time and chance to us or the third party being obliged to warrant to carry out the guarantee work. He is only allowed to carry out this work by himself upon having received our agreement, except in cases mentioned in § 637 BGB. The costs required for the reinstatement are paid by us in such extent being in a suitable relation to the value of the product in its faultless condition, to the importance of the fault and/or possibility for reinstatement in another way. All costs besides this are paid by the orderer.

 

7. The limitation is stopped for the duration of the time required for the reinstatement. It will not start again.


8. In case the reinstatement fails, the orderer can resign from contract or reduce the price.


9. Far-reaching rights because of deficiencies – in particular contractual or extraordinary contractual claims for damage which have not occurred to the product itself – are excluded in the scope described under Clause VII.

 

10. In case a claim should prove not to be justified, we have the right to charge all
costs occurring from this to the customer.


11. For all legal lacks which are not resulting from the infringement of patent rights of third parties the regulations mentioned under Clause V will apply.

 



VI. Patent rights


1. We only undertake liability for any claims resulting from the infringement of patent rights and copyrights if the patent right or copyright is or was not property of the orderer resp. of the enterprise which belongs to him because of direct or indirect major capital or vote rights, if the ordered advises us immediately of infringement risks becoming known or infringement traps being pretended and if upon our request he leaves the legal processes (also extraordinary) to us and in case of at least one patent right of the group of patent rights is published by the European Patent Authority or in one of the states Federal Republic of Germany, France, United Kingdom, Austria or USA.


2. Up to our choice we have the right to obtain the licence for the product infringing upon the patent right or copyright for the orderer or to modify it in such a way that the patent right resp. copyright is not infringed anymore or to replace it by a similar product which is not infringing upon the patent right resp. copyright.

3. The liability acc. to Clause VI.1 and 2 finally directs the liability for the freedom of patent rights and copyrights and expires 5 years upon delivery of the concerned product. This does not apply if the products had been manufactured as per specification of the orderer or the pretended infringement of the patent right or copyright is resulting from using our product together with products not having been manufactured by us or if the products are used in a way which could not be foreseen from us.

 



VII. Liability


As far as nothing different has been directed in these delivery terms we undertake liability for damage and replacement of futile costs as per §284 BGB (hereafter “compensation”) because of contractual or extraordinary contractual duties only in case of intention or gross negligence of our legal representatives or fulfilment assistants, in case of injury of life, body or health, in case of undertaking a guarantee or a provision risk, in case of infringement of essential contractual duties, in case of mandatory warranty as per product liability law or any other mandatory warranty. However the compensation for the infringement of essential contractual duties is limited to the contract-type foreseen damage as far as no intention or gross negligence by our legal representative or fulfilment
assistant or an injury of life, body or health is present or in case of undertaking a guarantee or a provision risk. A change in burden of proof to the disadvantage of the orderer is not connected to the before mentioned terms.

 


 

VIII. Retention of title


1. We retain title to the goods supplied by us until full settlement of all claims which we have under this contract and out of the remaining business relationship with the customer now or in the future on whatever legal grounds.


2. The customer is only entitled to process or to join our products with other products insofar as it takes place within his normal course of business. In the event of processing or junction with existing components by the customer we acquire joint ownership to protect our claims mentioned in Clause VIII.1 which the customer already transfers to us by now. As a contractual secondary duty the orderer has to have the goods of which we are part owners in gratis safe-keeping. The size of our joint ownership share is depending on the relation of the value our product and the object arising from the junction are showing at this time.


3. The orderer is entitled to sell our product against cash or under retention of title insofar as it takes place within the normal course of business. The orderer already cedes to us all titles incl. secondary rights arising from the resale. In case products belonging to us are sold together with other products the purchasing price corresponding to the price of our products is ceded. The claims assigned to us are to guarantee all titles as per Clause VIII.1. The orderer is entitled to claim all assigned titles. The rights arising from this paragraph can be revoken if the orderer does not fulfil his contractual duties in an orderly way, especially in case of delay of payment. The rights expire
also without expressive contradiction if the orderer stops his payment longer than just for a while. On our request the orderer has to advise in written and without delay to whom he has sold the products which are our property or of which we hold a joint ownership and which titles he holds from resale. He is obliged to arrange on his account the issue of legalized documents proving the assignment of claims.


4. The orderer is not entitled to initiate any other instructions relating to our reserved goods or goods being part of our joint ownership or the titles assigned to us. Distraints or any other legal prejudice relating to the goods belonging to us in whole or partly or any other claims are to be advised to us by the orderer without delay. The orderer pays for all costs which may occur for the withdrawal of accession by third parties to our reserved goods or property in security and for the replacement of the product as far as these could not be claimed from a third party.


5. In case of delay in payment or any other liable infringement of the contractual terms by the orderer we are entitled to request the products which do belong to our reserved goods or in which we have a joint ownership. In case we make use of this right this means only a rescission of contract if expressively confirmed in written - without prejudice to other mandatory legal regulations. In case the value for our existing security is exceeding our claims for more than in total 10% we will release securities up to our choice on request of the orderer.

 



IX. Payments


1. The payment is to be effected if not agreed otherwise, within 30 days after date of invoice, for repairs and other services within 10 days, cash, net. Any bnank charges are to be paid by the customer. However the delivery can be agreed on a payment term “ without delay” (f.e. cash on delivery or bank debit note) or payment on account.


2. We are entitled to set off payments against the eldest due invoice.


3. Payments by bill of exchange are not admissible.


4. In case the orderer is delayed in payment we are entitled to request the immediate cash payment for all due and unobjected invoices having arisen from the business relation. This right is not excluded by respite or acceptance of cheques. Further we are also entitled then to carry out outstanding deliveries only against payment on account
or presentation of securities. If the financial condition of the orderer is getting considerably worse, we may resign from contract if the orderer is not willing to accept the term “without delay” or to present any security.


5. The orderer can only count up with such claims which are unobjected or legally proved.

 



X. Jurisdiction / Applicable law


1. The exclusive place of jurisdiction is the residence of the works performing the order if the orderer is a merchant or a legal person of the public law or public legal private fortune. We are also entitled to raise claims before that court having jurisdiction over the place or domicile of the orderer.


2. The German material law shall apply for all legal relations between us and the orderer excluding the agreement of the United Nations regarding Contracts for the International Sale of Goods (CISG).