GENERAL TERMS OF SALE, DELIVERY, AND PAYMENT AND GENERAL TERMS OF PERFORMANCE FOR INSTALLATION AND SERVICE
1. Validity of the Terms.
a) Deliveries, service and offers by SOFTAL are effected solely in accordance with these terms and conditions of business. In the event of no new agreement being made these also refer to future
transactions. These terms are to be considered valid up to the time of receipt of the goods or service and thereafter.
b) Exceptions to these terms and conditions of business are valid only when confirmed in writing by SOFTAL.
c) These terms and conditions of business render all previous SOFTAL terms invalid.
2. Offers and Conclusion of Contract
a) Offers by SOFTAL are conditional and without obligation. Letters of acceptance and all orders are valid only when confirmed in writing by SOFTAL. The same applies to addenda, amendments, and subsidiary agreements.
b) Drawings, illustrations, weights and other service specifications are binding only when confirmed in writing.
c) Where a purchase is made based on a sample or specimen, the features of the sample or specimen are not to be considered as guaranteed. The sample or specimen is to be regarded as a nonbinding illustrative item demonstrating the approximate specification of the goods to be supplied.
a) Unless otherwise stated, SOFTAL is bound by the prices contained in its offer for 90 days from the date of the offer. The prices stated by SOFTAL in the order confirmation are decisive, and include Value Added Tax at the current rate where applicable. If the order is less than EUR 300,00 a surcharge of EUR 50,00 applies.
b) Prices are ex-works (EXW Incoterms 2000) unless stated otherwise. Packaging and freight costs are charged at cost price where other price conditions are requested.
c) Invoicing of service is in accordance with the General Terms of Service for Installation and Service. See paragraph 12
4. Payment Terms
a) For delivery of complete machines: 40% of the total purchase price immediately on receipt of the order confirmation. 60% on receipt of the goods and invoice.
b) For delivery of spare parts and accessories: 100% net immediately on receipt of the invoice.
c) Installation and Service invoices are to be settled, without deductions, immediately on receipt of the invoice.
5. Method of Payment
a) Payment is to be made by direct bank transfer (S.W.I.F.T.) without deduction unless otherwise stipulated in the SOFTAL offer. Bank charges are to be borne by the Purchaser.
b) Withholding of payment or charging in lieu of possible claims of the purchaser, including those from previous deliveries is not accepted, unless those claims have been legally established, or are undisputed.
6. Delay in Payment
a) In cases of delay in payment, interest is payable on arrears at the current market interest rate. We reserve the right to amend this if further damages are caused by the delay.
b) Should the Purchaser fall into arrears, his entire obligation becomes due. Reserving the right to claim compensation, SOFTAL is entitled to withdraw from current contracts without granting a period of grace. SOFTAL is not obliged to make any further delivery until all outstanding invoices are settled in full. This may include interest on arrears.
c) Should the Purchaser be in arrears, or have deterioration in financial status, SOFTAL reserves the right to request advance payment before collection of the goods.
7. Retention of Title
a) The goods remain the property of SOFTAL until settlement of all obligations existing wholly or partly in the course of business at the time of delivery. This also applies where the purchase price is paid for the consignment of goods determined by the Purchaser.
b) Through operation the Purchaser acquires no rights to the goods subject to title. (§950BGB/Civil Code). Operating the goods on accrues no liabilities for SOFTAL. Should the operated goods be intermingled or incorporated with other assets (§947, Section 1, BGB), SOFTAL will acquire joint ownership in proportion of the value of the goods subject to title to the other assets. The portion owned by SOFTAL takes on the same legal status as the goods subject to title. On settlement of all obligations pertaining to title, the portion owned by SOFTAL is assigned to the Purchaser. Should an asset belonging to the Purchaser be considered the principle component (§947 Section 2, BGB), then the Purchaser assigns his ownership of the asset from the connection of goods, in
order to cover all claims arising from the business transaction due to which ownership was retained. In such cases the Purchaser holds the asset, from the combination, in safe keeping, free of charge on behalf of SOFTAL. On settlement of the arrears specified, title is assigned to the Purchaser.
c) The Purchaser is entitled to sell the goods subject to title only within the framework of due and proper business transactions, and as long as he is not in arrears. The Purchaser is only entitled to effect such a sale under the proviso that claims from the resale, in accordance with Clause 7d of these conditions, are assigned to SOFTAL. The Purchaser is not entitled to place the goods for disposal by other means, i.e. by pledging or mortgaging. The Purchaser must notify SOFTAL immediately of seizure by a third party.
d) In the case of resale of the goods subject to title, the Purchaser assigns the value of the resale to SOFTAL to cover those arrears due to which the ownership was retained. This assignment of security is independent of whether the goods have been previously processed or combined with another asset. Should the goods subject to title be sold by the Purchaser together with other goods not belonging to SOFTAL, whether with or without processing or connection, assignment of the purchase price applies only to the value of the goods subject to title, which together with the other goods form the purchase contract. The Purchaser is entitled to collect from the resale until our retraction in each individual case. He is not entitled to assign the proceeds. Should the Debtor fall into arrears with regard to his payments, the entitlement to collect becomes invalid. On request, we will be sent, without delay, a list of third party debtors, stating their addresses and amounts due. If the value of the existing securities for SOFTAL exceeds the value of our claims by more than 20%, we are obliged to release securities at our discretion if so requested by the Purchaser.
8. Entry Certificate (only for deliveries within the EU)
Invoicing for intra-community supplies to trading partners in a EU member state other than Germany is exempt of VAT at the trade partner’s request when their VAT number is provided. Changes to the VAT number must be communicated immediately. If required, the trading partner will issue an entry certificate immediately, but no later than 7 days, after passing of risk. The ertificate can be issued by the trade partner or any authorized representative who receives the supplied goods. If an entry certificate is not issued by the trade partner or an authorized epresentative, or if it is discovered that VAT exemption was incorrectly claimed, we are entitled to raise an invoice covering the VAT and compensation for any damages arising from the process.
9. Period of Delivery and Performance
a) The dates and intervals stated by SOFTAL are without obligation unless otherwise stipulated in writing.
b) In the case of binding dates and intervals, SOFTAL is not responsible for delays in delivery or service due to Force Majeure, or events which result in delays or prevent delivery, such as difficulties with procurement, stoppages, strikes, lockouts, personnel shortage, transport facilities, governmental decrees etc. This also applies if these events affect SOFTAL sub-suppliers. In the event of any of the above occurring, SOFTAL is entitled to postpone delivery or service, as applicable, for the duration of the disruption, plus a suitable start up period, or, to withdraw wholly or in
part from the contract with respect to that part which has not been fulfilled.
c) If the disruption lasts for more than three months, the Purchaser is entitled, after granting a period of grace, to withdraw from the contract with respect to that part which has not been fulfilled.
d) SOFTAL is entitled to render part delivery or part performance at all times. In case of delivery of non-stock items, and specially designed items, SOFTAL is entitled to effect delivery with plus or minus 10% of the quantity ordered.
a) SOFTAL guarantees that the goods are free from manufacturing and material defects: the guarantee is valid for twelve months.
b) All claims under the guarantee are deemed invalid if SOFTAL operating and maintenance instructions are not followed, the product is altered, parts exchanged, or if defects arise due to the use of unsuitable materials on the part of the Purchaser. Should defects occur due to circumstances caused by SOFTAL subsuppliers, SOFTAL is liable for these only to the same extent as the sub-supplier. SOFTAL is entitled to exempt itself from liability by assigning the claim against the sub-supplier.
c) The Purchaser must notify SOFTAL in writing of any defects within one week of taking delivery. SOFTAL is to be notified immediately on discovery of defects which could not be determined during this period.
d) In the event of the Purchaser notifying SOFTAL that the goods do not fulfil the guarantee, SOFTAL requires that:
– The defective part(s) be returned to SOFTAL for repair and return
– The Purchaser retain the defective part and SOFTAL will send a service engineer to effect the repair on site.
Should the Purchaser require that a guarantee claim be effected at a location specified by him, SOFTAL may comply with this request whereby the parts under guarantee will not be invoiced, but working time and travel expenses are payable at SOFTAL standard rates.
e) Should the repair prove unsatisfactory, after an adequate period, the Purchaser may request a reduction in price, or cancellation of the contract.
f) Liability for normal wear and tear is excluded.
g) Claims against SOFTAL under the guarantee are valid for the direct Purchaser only, and cannot be reassigned.
h) The preceding clauses contain the conclusive guarantee conditions for the products only, and exclude all other guarantee claims. This does not apply to claims for compensation arising from guaranteed features, for which the Purchaser should insure against consequential damages.
11. Limitation of Liability
Claims for compensation due to poor performance, to positive infringement of claims, to negligence on conclusion of contract, and to unauthorised actions are excluded, both against SOFTAL and its vicarious representatives, except in cases of wilful negligence.
12. Installation and Service
When SOFTAL undertake installation and service, the following conditions apply:
a) Installation costs for entire systems are charged as unit prices. The scope of service is verified by SOFTAL (Installation Report) in the presence of the Purchaser.
b) The unit prices contain the following costs; working and travelling time, travel costs, local living allowance, accommodation at cost, expenses for luggage and tool carriage, provision of measuring and test equipment, and any additional materials.
c) Installation includes the connection of the equipment to a state of readiness for transfer to the Purchaser. The unit prices do not include, waiting time, delays and additional journeys to the site for which SOFTAL is not responsible, and alteration work at the request of the Purchaser. These costs will be invoiced after verification by the Purchaser.
d) Field maintenance work and minor installation work is invoiced according to time and outlay. This includes working and travelling time, travel costs, local living allowance, accommodation at cost, expenses for luggage and tool carriage, provision of measuring and test equipment, and any additional materials.
e) Workshop repairs are invoiced as a unit price. The unit price includes working time, spare part requirement, provision of measuring and test equipment, testing and supervision, freight and packaging costs for return. No guarantee is given for repair orders without a full description of the fault. If no repair can be implemented due to lack of fault information, testing costs will be invoiced.
f) Rates for working and travelling time, additional payments, travel fares, allowances, and accommodation costs,, also flat rate prices for workshop repairs are quoted according to current rates.
g) The guarantee period for installation, service work and repairs is twelve months, in so far as the Purchaser is a trading company.
13. Transfer of Risk
a) Risk is transferred to the Purchaser when the delivery item, or part thereof, has left the factory. This also applies to deliveries effected with our own vehicles or deliveries with postage and packaging free, and to cases in which we undertake installation, erection or other service.
b) If dispatch is delayed due to circumstances beyond our control, risk is transferred to the Purchaser from that time when the consignment is ready for dispatch.
c) At the Purchaser’s request and at his expense, the goods may be insured against breakage, fire, and water and transit damage. Insurance is invoiced at cost.
14. Applicable Law, Legal Domicile, Partial Invalidity
a) Federal German Law is applicable for these terms of trade and legal relations between SOFTAL and the Purchaser. The applicability of the uniform laws concerning international purchase of movable goods and the conclusion of international contracts concerning movable goods is excluded.
b) Legal domicile for all disputes arising directly or indirectly from the contractual relationship is Hamburg, Germany.
c) Should any condition in these terms and conditions of business, or a condition within the framework of other agreements be, or become invalid, this does not affect the validity of all other conditions or agreements.