1.) Scope of application
a) The deliveries, services, sales and offers are exclusively made on the basis of these terms of delivery and payment. Thus, the latter also apply to all future business connections even if they will not have been explicitly agreed upon once again.
b) Deviating agreements and terms and conditions are only binding if we have confirmed them in writing. We hereby explicitly reject general terms and conditions of the customer conflicting with our terms of delivery and payment. Even if the customer notifies personal conditions, our terms of sale and delivery will be regarded as having been agreed upon receipt of the goods and services at the latest. Confirmation letters on the part of the customer are not obligatory for us, even if we do not explicitly reject them.
c) Agreements or amendment, arrangements by telephone or oral ones that deviate from the terms of delivery and payment are only binding if we confirm them in writing.
d) The invalidity of single contractual provisions will not affect the validity of the contract. If one provision of these terms of delivery and payment is invalid, we are entitled to replace the invalid provision by a valid one whose economic success corresponds to the largest possible extent to that of the invalid provision.
2.) Offer and conclusion of the contract
a) Our offers are subject to confirmation and without obligation. In order to be legally effective, declarations of acceptance and all orders must be confirmed by us in writing or by fax.
b) Drawings, figures, dimensions, weights or other performance characteristics are only binding, if this has been explicitly agreed upon.
c) We reserve the property right and copyright in all drawings, figures, plans and other documents. Without our consent, documents must not be passed on to third parties.
All listed prices are quoted ex the respective legal value added tax. Additional deliveries and services that are not contained in the offer will be charged separately. If on the date of delivery, the economic circumstances have considerably changed compared with those at the time of the contract conclusion, we are entitled to implement an appropriate price increase proportionately to the change that has occurred.
4.) Time of delivery and of performance
a) Unless otherwise explicitly agreed upon in writing, all dates and deadlines mentioned by us are subject to confirmation.
b) Even in deadlines and dates that have been agreed upon in a binding way, we are not responsible for delays in the delivery and performance caused by force majeure or caused by events considerably complicating the delivery or performance for us or making it completely impossible, this also includes difficulties in the materials procurement that have occurred retroactively, operational disturbances, strike, lockout, staff shortage, shortage of means of transportation, official orders, etc. even if they occur at our sub-suppliers or their sub-contractors. They entitle us to defer the delivery or the performance by the duration of the impairment plus an appropriate start-up time or to completely or partially rescind the contract for the part that has not been fulfilled, yet.
c) If the impairment lasts for more than 3 months, the customer is – after an appropriate respite has been set – entitled to rescind the contract regarding the part of the contract that has not been fulfilled, yet.
d) We are at any time entitled to partial deliveries or partial performances.
e) The delivery is effected freight costs unpaid to the place designated by the customer. We are entitled to ship the goods in the name of the customer and to conclude the agreements that are necessary for this purpose in his name.
f) In the delivery of objects, the risk passes to the customer as soon as the object has been handed over to the person carrying out the transportation or has left our warehouse for shipment.
For defects, also including the lack of warranted characteristics, we assume the following liability:
a) You must give written notice of defects – including the lack of warranted characteristics – immediately after you have discovered them and stopped any possible processing. After expiry of 10 days as of the receipt of the goods at the place of destination, any notification of obvious defects is excluded.
b) The German standards as well as the personal standards of our supplier and his subsuppliers apply (among other things) to the quality of the goods.
c) Justified defects will only oblige us to rectification, compensation at our option or rescission of the contract. We are not liable for any damage resulting from incorrect information on the part of the customer, insufficient maintenance or care, operation against instruction or the utilisation of spare parts from other manufacturers. More far-reaching claims on the part of the customer, particularly any liability for consequential damage, is in any case excluded. The customer is in no case entitled to retain due payments, even if notifications of defects are justified. The customer is only entitled to offset sums against undisputed claims or claims that have been legally established. If objected delivery objects are used, the right to warranty is forfeited.
d) We will only be liable towards the customer for damages – irrespective of the legal ground – if we or the vicarious agents deployed by us have acted intentionally or grossly negligently.
a) All invoices are payable immediately after receipt of the invoice, strictly net. Any other mode of payment must be explicitly approved by us in writing.
b) We explicitly reserve the right to reject cheques and drafts. Acceptance is always only affected on account of performance. Discount and note charges are for the customer’s account and are immediately due. Waiving §§ 366, 367 BGB (German Civil Code) and despite differing provisions by the customer we will determine which claims are satisfiable by the customers payment. As of a default, we are entitled to charge the usual bank interest, at least, however, 5% above the respective discount rate of the German Central Bank.
a) As of the date of delivery, the Seller will accept guarantee for the electrical and mechanical components for a period of 12 months.
b) The liability under this guarantee is limited to the gratuitous delivery and installation of the supplier’s spare parts in the house. For this purpose it is necessary that the machine is sent to the supplier postage paid. After the repair, the customer will get the machine back, postage paid.
c) We will not be liable for damage caused by insufficient maintenance and care, improper use or circumstances outside the normal operating conditions even if it occurs during the guarantee period.
d) We will not accept any guarantee for faults or defects in the delivery item that are attributable to improper repairs or the installation of spare parts not corresponding to the original design.
e) The guarantee does moreover not include any china and glass parts as well as any parts being subject to normal wear and tear. This includes for example seals, valves and taps.
f) The liability within the scope of the preceding conditions is only applicable towards the purchaser.
g) The guarantee mentioned above will only apply if the buyer has fulfilled all its obligations towards the Seller.
8.) Default of acceptance
If the customer is behind schedule with the acceptance of the goods or services that have been offered to him in an orderly way, we are – after expiry of an reasonable respite – entitled to rescind the contract and to claim damages amounting to 25% of the invoice amount without proving the actual existence of damage or the damage amount. This does not apply if the customer proves that a minor damage or no damage has resulted at all.
9.) Reservation of title
a) Until the purchase price as well as the incidental costs have been paid in full and until all past and future deliveries of goods within the scope of the business connection – including all secondary claims – have been paid, the delivered goods remain our property. The same applies if the purchase price for certain deliveries of goods, designated by the customer, have been paid.
b) Our reservation of title will neither be affected in any way by the fix installation of the delivery item or its connection to the supply lines.
c) The purchaser is entitled to sell the reserved goods in the ordinary course of business if he meets his obligations under the business relation with us in due time; he is, however, not entitled to pledge the goods or to transfer them by way of security. In case of a resale, the purchaser’s claim amounting to the purchase price that had been agreed upon passes to us without a special agreement being necessary in every single case.
d) In case of pledging or other access and enforcement measures of third parties regarding the reserved goods or the claims assigned to us, the purchaser is obliged to point to our property right and the extended reservation of title and to notify us immediately.
e) If the purchaser acts as buyer for a company group, an association of wholesalers and retailers or in similar cases, he is in all sales within the company group, to connected wholesalers and retailers, etc. obliged to transfer our extended reservation of title. The same applies if the purchaser entitles us to directly supply third parties.
f) If the value of the securities existing to our benefit exceeds our claims by a total of more than 20 percent, we are – upon the purchaser’s request – obliged to release securities at our discretion.
10.) Place of performance, place of jurisdiction and applicable law
a) For both parties, Papenburg is the place of performance for the delivery, the performance and the payment for all rights and duties resulting from this contract.
b) If the buyer is a businessman, the court of jurisdiction is the responsible court where Squell GmbH has its registered office.
To these terms and conditions as well as to the whole legal relationship between the customers and us, the law of the Federal Republic of Germany applies. The application of the Hague Convention dated 01 July 1964 concerning uniform laws on the international sale of goods is excluded.