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Conditions of Sale and Supply for Commercial Relations I. Quotation and Extent of the Supply 1. Quotations are subject to availability. 2. The Supplier’s written order confirmation is authoritative for the extent of the supply in the event of a quotation by the Supplier with a time limit and acceptance of the offer within the said term, in so far as no timely order confirmation is available. Additions, modifications and subsidiary agreements require the Supplier’s confirmation. Technical changes are subject to alterations. II. Pricing, Packing und Despatch 1. Our prices are in Euros and are ex delivering works, including loading in the factory, however excluding packing. V.A.T. has to be added to prices in the statutory amount applicable. 2. Packing and despatch take place according to one’s best judgement. Packing is calculated at cost price. 3. The minimum order value is 100,00 €. 4. For repairs which are not covered by the guarantee period, we charge a cost estimate fee which depends on the price for a comparable new gearbox and which is differentiated as shown (if a gearbox is not longer in our product range, we evaluate a time-reinstatement value-calculation): Gearbox value as new <= 15.000,- €: 4% 5. For scrapping a gearbox we charge a fee of 100,- €. This
fee does not apply if coeval ordering a comparable new gearbox.
On the other hand it will be added to the fee for the cost estimation. III. Delivery Terms 1. The delivery term begins with the despatch of the order confirmation, however not before furnishing the documents, permits and decontrols to be procured by the Customer and receipt of an agreed advance payment. 2. The delivery term is adhered to, if by its termination the delivery item has left the factory or readiness for despatch has been advised. 3. The delivery term is extended appropriately for measures within the frame of industrial action, in particular strikes and lockouts as well as in the event of unforeseen circumstances, which it can be proved considerably affect the preparation or delivery of the delivery item. This is also applicable, if the circumstances occur with sub-contractors. Neither are the aforesaid circumstances the Supplier’s responsibility, if they arise during a delay which is already underway. The Supplier will inform the Customer of the beginning and end of this type of setback as soon as possible in important cases. 4. If despatch is delayed at the Customer’s request, then it will be invoiced, beginning one month after advice that the goods are ready for despatch, for the costs which have arisen for storage in the Supplier’s works in the amount however of at least ½ the amount of the invoice for each month. The Supplier is authorised however, after the setting and expiry of a reasonable term without effect to dispose of the object of the supply in a different manner and to supply the Customer within a reasonably extended period. 5. Maintaining the delivery term presupposes the Customer’s fulfilment of the contractual obligations. IV Passage of Risk and Acceptance 1. Risk is transferred to the Customer at the latest when the goods are loaded and this is even if the Supplier has taken over other services e.g. the despatch costs or transport and installation. At the Customer’s request the shipment is insured by the Supplier against theft, damage by breakage, during transport and damage by fire and water. 2. If despatch is delayed as a result of circumstances for which the Customer is responsible, risk is transferred to the Customer from the day of despatch; however, the Supplier is obliged to effect the insurance that the Customer requires at the request and expense of the latter. 3. Objects supplied are to be accepted by the Customer even if they show slight defects regardless of the rights under paragraph IV. 4. Part shipments are allowed. V Payment Terms 1. In the absence of any special arrangement, payment is to be
made in cash free the Supplier’s payment office, and that is to
say b) Repairs and presence of mechanical installers: c) Orders over Euros 25,000.--: Departures from a) – c) can be stipulated in individual contracts. 2. Cheques and bills of exchange are only valid as payment after their final payment. Discount and bill charges are at the Customer’s expense. 3. L/Cs are accepted from a net order value in the amount of € 5,000.--. For L/Cs of lesser value all Bank charges due at home and abroad are at the Customer’s expense. Costs for L/Cs are at the Customer’s expense in the full amount. 4. The withholding or offsetting of payments on account of any of the Customer’s counter claims disputed by the Supplier is not permitted. VI Retention of Title 1. The Supplier retains ownership of the delivery item, until all the Supplier’s demands against the Customer under the business relationship, including future demands arising also from contracts concluded at the same time or later, have been settled. This is also applicable if individual or all the Supplier’s demands were included in a current invoice and the balance is drawn and recognised. In the event of behaviour in violation of the contract by the Customer, in particular in the case of delayed payment, the Supplier has the right to take back the delivery item after a warning and the Customer obliged to hand it over. In the event of withdrawal or attachment of the item by the Supplier a withdrawal from the contract is only present, if the Supplier expressly so declares in writing. In the event of attachments or other impairments by third parties the Customer has to inform the Supplier in writing without delay. 2. The Customer has the right, to resell the delivery item in the normal course of business. However, it already now withdraws from the supplier all demands, which occur from the resale against the Customer or against third parties, and this is regardless of whether the conditional goods are resold without or after conversion. The Customer is also empowered to collect these demands after withdrawal. The Supplier’s power to collect the demands itself, remains unaffected by this; however the Supplier undertakes, not to regard the demands inasmuch as the Customer honours its payment commitments in the regular manner. The Supplier can require the Customer to make known the assigned accounts receivable and the debtors for these, to give all necessary details for inclusion, to furnish the pertinent documents and to inform the debtors of the assignment. If the delivery item is resold together with other goods which do not belong to the Supplier, then the Customer’s account receivable against the recipient of the delivery is valid as assigned in the amount of the contract price agreed between Supplier and Customer. 3. The conversion or reorganisation of safeguarding matters is always undertaken by the Customer for the Supplier. If the safeguarding matter is processed with other objects which do not belong to the Supplier, then the Supplier purchases joint-ownership in the new object in proportion to the value of the object with reservations in relation to the other objects processed at the time of processing. For the object which is produced as a result of the processing moreover, the same is applicable as for the object subject to reservations. 4. The Supplier undertakes, to release the safeguards to which it has a right inasmuch as their value exceeds more than 25% of the accounts receivable, as long as the latter have not yet been settled. VII Liability for Shortcomings in Supplies The Supplier is liable for shortcomings in supplies, which also encompass the lack of expressly guaranteed characteristics, excluding further claims regardless of paragraph IX 4 as follows: 1. In accordance with §309,I,8,b), and foll.) of the German Civil
Code the Supplier grants basically a warranty term of 12 months
from despatch date or that of initial operation, at the latest however
18 months after delivery, if the date of initial operation is later
than 6 months after the date of shipment. (Delivery=date of the
delivery note). The date of initial operation is to be communicated
to the Supplier in writing by registered letter stating the gear
serial number as well as the number of the order confirmation, under
which the product was supplied. If such a communication is not imparted,
basically a warranty period of 12 months from date of despatch,
regardless of the actual time of initial operation, is applicable.
All those parts are to be rectified free of charge or resupplied
at the sole discretion of the Supplier which come to light within
12 months after initial operation as a result of a circumstance
prior to the passage of risk– in particular on account of inadequate
design, flawed materials or faulty manufacture – as unusable or
which are impaired not inconsiderably in their usefulness. 2. The Customer’s right to validate claims for defects is time-barred in all cases from the time of the punctual complaint onwards with expiry of the warranty period. 3. No guarantee is given for damage, which has occurred due to the following reasons: unsuitable and misuse, incorrect assembly or initial operation by the Customer or third parties, natural wear, incorrect or careless handling, unsuitable operating material, substitute materials, defective building works, unsuitable building ground, chemical, electrochemical or electrical influences, inasmuch as they are not due to the fault of the Supplier. For wear-and-tear parts no guarantee is given. 4. For undertaking all improvements which appear necessary to the Supplier or replacement deliveries at its discretion, the Customer has to give the Supplier after agreement with the latter the necessary time and opportunity, otherwise the Supplier is released from liability for defects. If the Supplier is late with remedying the discrepancy, the Customer has the right, to remedy the discrepancy itself or to have it remedied by a third party and to require the Supplier to reimburse the necessary costs. 5. The Supplier bears the direct costs incurred by the repair work or substitute delivery – inasmuch as the complaint appears to be justified – the costs for the replacement part including despatch within Europe as well as the reasonable costs for dismantling and assembly in Europe, also, if this can be reasonably required in accordance with the situation of the individual case, costs for any necessary presence of its mechanical engineers and support staff in Europe. What is more the Customer bears the costs. 6. The warranty period for the replacement part and the repair work is 12 months, at the most until expiry of the original warranty period for the delivery item. The period for the warranty on the delivery item is not extended by the plant interruption caused by the rectification of defects. 7. Any modifications or repairs carried out by the Customer or third parties unprofessionally without the Supplier’s prior consent will invalidate liability for the consequences deriving therefrom. 8. Further claims by the Customer, in particular compensatory damages, which did not occur on the delivery item itself, are excluded. VIII Liability for Subsidiary Obligations If, due to the fault of the Supplier, the delivery item cannot be used by the Customer in accordance with the contract as a result of omitted or incomplete fulfilment of recommendations and advice before or after conclusion of the suggestions and advice as well as other contractual additional obligations – in particular, instructions for operation and maintenance of the delivery item - then in connection with further claims by the Customer, the provisions of paragraphs VII and IX are applicable accordingly. IX. Right of the Customer to Withdrawal and other Supplier Liability 1. The Customer can withdraw from the contract if the whole performance becomes definitely impossible for the Supplier before passage of risk. The same is applicable in the event of the Supplier’s inability to perform. The Customer can also withdraw from the contract if in the case of an order for the same type of item it becomes impossible to carry out supply of a part due to quantity and it has a justifiable interest in refusing a part shipment; if this is not the case, then the Customer can reduce the counter-performance accordingly. 2. If there is statutory delay in performance in accordance with paragraph III of the conditions of supply and if the Customer grants the late supplier a reasonable extension of the original term with the express declaration, that it refuses to accept performance after expiry of this extension and if the extended term is not adhered to, then the Customer is authorised to withdraw. 3. If impossibility occurs during delayed acceptance or through the fault of the Customer, then the obligation of counter-performance is incumbent on the latter. 4. The Customer also has a right to withdraw, if the Supplier allows a reasonable extension granted to it of the original term for repair work or a replacement in respect of a shortcoming for which it is responsible in respect of the conditions of supply, to elapse without effect by its own fault. The right of withdrawal by the Customer also exists in the event of the Supplier’s impossibility or inability to perform the repair work or effect the replacement supply. 5. All other further claims on the part of the Customer are inadmissible,
in particular for transformation, notice or deterioration as well
as compensation of any type whatsoever also of such damage, as is
not occasioned to the delivery item itself. X. Supplier’s Right of Withdrawal In the event of unforeseen circumstances in accordance with paragraph
III of the conditions of supply, inasmuch as they considerably alter
the economic significance or the content of the service or have
a considerable effect on the Supplier’s operation and for the event
of impossibility of performance coming to light later, the contract
is adapted accordingly. Inasmuch as this is not financially justifiable,
the Supplier has the right to withdraw totally or partially from
the contract. XI. Place of Fulfilment and Court of Jurisdiction 1. The place of fulfilment for supply and payment is the Supplier’s head office. 2. For all disputes arising from the contractual relationship, if the Customer is a fully qualified merchant, a legal person under public law or public-law special assets, the legal proceedings have to be instituted at the court which is competent for the Supplier’s head office. The Supplier is also authorised to take legal action at the location of the Customer’s head office. 3. What is more, the contractual relations are governed solely by Federal German law. XII. Deviations from these provisions require the Supplier’s express agreement in order to be valid. XIII. In the event of litigation regarding the contents of these conditions of sale and supply the version drawn up in the German language is the only determinant version with regard to the said contents. PIV Drives GmbH
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