DELIVERY AND PAYMENT TERMS International
I. Scope of Application, Exclusive Applicability, Future Business
These terms are exclusively applicable to all business transactions, in case of ongoing business relations also to all future transactions for deliveries of J. Häuslschmid GmbH, Mayerhofen 2, D-84529 Tittmoning ("HÄUSLSCHMID"), with customers abroad ("CUSTOMERS"), unless otherwise agreed in accordance with these terms.
II. Conclusion of Contract, Written Form, Deadlines, Delivery, Place of Performance, Self Supply, Force Majeure, Default
- HÄUSLSCHMID’s offers are subject to change. Contracts for delivery are made in writing but will be concluded upon CUSTOMER’s acceptance of delivery at the latest. Modifications of these terms upon contract conclusion have to be made in writing.
- Specifications relating to deadlines, terms of delivery and quantities are not binding. HÄUSLSCHMID’s compliance with the obligation of delivery requires CUSTOMER’s due performance of all duties and obligations; HÄUSLSCHMID can enforce a right of retention. If applicable, the term of delivery does not begin before CUSTOMER provided a security according to Section IV. of these terms.
- Deliveries are made ex works (INCOTERMS 2000); place of performance shall be at the domicile of HÄUSLSCHMID. HÄUSLSCHMID is entitled to partial deliveries unless unacceptable for the CUSTOMER.
- In case of a default in delivery CUSTOMER can declare the contract avoided if a reasonable respite (at least two weeks) has been granted, except for delays in delivery due to non-effected self-supply with ordered goods or services for reasons for which HÄUSLSCHMID is not responsible, or due to force majeure (e.g. strike, sudden import restrictions, etc.). In these cases agreed or set deadlines/time-limits are extended by the time performance is impaired due to these circumstances. However, if such impairment entails a deferment of performance by more than four months, either party can withdraw from the contract.
III. Prices, Payment, Right of Retention, Right to Offset
- Delivery is made on basis of the price list applicable at the conclusion of contract plus possible shipment costs (plus legal VAT if applicable).
- The purchase price is due immediately and payable within 30 days from the date of invoice without deduction. Default interest for arrears amounts to eight percentage points above the basic interest rate.
- CUSTOMER can only exercise a right of retention or offset against claims of HÄUSLSCHMID because/on basis of undisputed or legally established claims.
As of a goods value of EUR 30.000,00 and at HÄUSLSCHMID’s request, CUSTOMER provides an unconditional, unlimited and absolute payment guarantee of a European bank or a letter of credit as security for the purchase price.
V. Obligation of Inspection, Warranty, Liability
- CUSTOMER will inspect the goods right after receipt of delivery and will notify HÄUSLSCHMID in writing of evident defects within 10 days after delivery and of all other defects within 10 days from discovery, by defining the defect in detail and declaring which claims are asserted.
- CUSTOMER has to grant a reasonable respite of at least 10 days for remedying defects. In case of minor defects, only a reduction of price can be claimed instead of a remedy of defects. Defects are remedied by replacement delivery. Defects are remedied at the place to which delivery was effected; fitting and removal as well as the assumption of costs incurred for fitting and removal are not owed in case of a remedy of defects.
- In case of defects, a fundamental breach of duty is only assumed, if the supplied goods cannot be used by the CUSTOMER at all; also in these cases, the CUSTOMER has to grant a respite for remedy of defects.
- Avoidance of the contract can only be declared within no later than ten days after a third trial to remedy defects turned out unsuccessful.
- HÄUSLSCHMID shall not be liable for breaches of duty due to impediment beyond its control, which are not at least due to gross negligence or not fundamental. Any damage foreseeable to HÄUSLSCHMID amounts at maximum to – unless differently advised by CUSTOMER in writing within no later than 10 days from the order – the ordinary purchase price of the goods (i) for the damage of a reduced value of the goods due to defects, (ii) for loss of profits and business (iii) as well as for other liabilities and consequential damage. CUSTOMER’s claims for damages shall be statute-barred after one year from the beginning of the statutory period of limitation. This limitation of liability shall not apply in cases of intent, guarantees, injury to life, body and health or product liability.
VI. Governing law, place of jurisdiction
- All legal relations between HÄUSLSCHMID and the CUSTOMER are exclusively governed by German law, the UN Sales Convention explicitly included.
- Exclusive place of jurisdiction for all disputes arising out of the contract and the related relationships thereto shall be at the seat of HÄUSLSCHMID. HÄUSLSCHMID may at its own discretion sue the CUSTOMER at any other legal place of jurisdiction or, as plaintiff instead of appealing an ordinary court decide to file for settlement by binding arbitration in compliance with the arbitration rules of the German Institution for Arbitration; such arbitration proceedings shall be conducted in Munich and the language of the proceeding shall be English.
Date: March 2018