Article 1: General
1.1 The Buyer shall be deemed to have full knowledge of the terms and conditions contained herein and such terms and conditions shall be unconditionally accepted by the Buyer. In the event of any conflict between the Buyer’s and the Seller’s General Terms And Conditions, it is accepted that the Seller’s General Terms & Conditions shall prevail, even if the Buyer’s terms and conditions specify that Buyer’s terms and conditions are solely applicable.
1.2 Any deviations from the General Terms and Conditions contained herein shall be valid only if they have explicitly been accepted by us and confirmed in the Special Terms, latest at the time of signing the contract. The non-applicability of, or special and explicit deviation from, one or several terms and conditions contained herein cannot be construed by Buyer as constituting a waiver of the general terms and conditions contained herein.
Article 2: Quotation - purchase orders
2.1 Our quotations shall be valid only subject to our written confirmation and for the specified period or - if no specific validity is mentioned - for a period of 15 days from the send date. If no written purchase order is received within the specified deadline we shall no longer be bound by our quotations.
2.2 The validity of obligations, orders or changes accepted by our employees or our sales representative agencies shall be subject to our written confirmation.
2.3 Any complaints regarding any of our order confirmations must reach us within two working days from the send date, otherwise such complaints shall not be receivable.
2.4 Any – even partial – amendments to be made to the purchase order after our order confirmation has been issued shall be acceptable only subject to our written consent, and if the Buyer bears any and all additional costs and expenses resulting from such amendment. In all cases the Buyer shall bear the cost of any items that have already been ordered or that are under production at the time of amendment.
Article 3: Deliveries
3.1 The delivery times stated in our order confirmations are indicative only. The Buyer shall have no right to damages or to refuse acceptance of the delivery or to cancel the contract for failure to meet the delivery time stated.
3.2 The obligation to deliver the goods shall be in any case suspended without prior notice or right to damage if, and to the extent that, we are prevented from fulfilling our obligations by the occurrence of an event of Force Majeure.
We also reserve the right to cancel any contract or order, in whole or in part, without prior notification and without being liable for damages, if an event of Force Majeure occurs.
The following events shall be considered as Force Majeure even if the conditions for an event of Force Majeure under general law are not fulfilled: Labour disputes (total or partial strike, lock-out, ...), civil unrest, epidemics, storms, machine breakdown, fire, explosion, war, floods and other natural disasters, mobilization, blockade or embargo, industrial accident, or any other reason that shall prevent proper delivery of goods by our suppliers, normal production, delivery or transportation, as well as any similar events of any kind that occur in our company or in that of any of our subcontractors our suppliers.
If the event constituting a case of Force Majeure extends beyond a period of six months, each party shall have the right to cancel the contract on eight days’ notice by registered letter, without right to compensation.
3.3 Delivery takes place by the Buyer or forwarding agent taking possession of the goods in our facilities.
3.4 The Buyer shall not refuse partial deliveries.
Article 4: Price
4.1 Unless otherwise agreed in writing, all prices are quoted for delivery ex our works and shall exclude any other services such as transportation and handling. If we are to handle transportation or to organize transportation, transportation costs shall be charged to the Buyer.
4.2 Any raise of interests or taxes (such as V.A.T., for example) and any new tax that would be applicable to the order and enter into force after the order acknowledgement shall be borne by the Buyer, even if the sales price was stated including taxes.
Article 5: Payment
5.1 Unless otherwise agreed in writing, payments shall be made out to our registered offices in Duarrefstroos 32, 9990 Weiswampach, Luxemburg.
5.2 All our invoices shall be payable within thirty days from the invoice date. Payments by check shall be valid only after the check is honoured by the bank.
5.3 Any right to deduct a discount must be agreed in writing at the time of order acknowledgement. Discounts, if any, shall be applied exclusively to the net value of the goods. i.e. not to any transportation, packing or other costs. Buyers shall be entitled to exercise their right to deduct a discount only if all prior invoices have been paid in full, latest at their due dates.
5.4 In the event of non-payment of invoices at their due date, suspension of payments, opening of a judicial reorganization procedure, or Buyer’s insolvency, invoices shall become due with immediate effect and the Buyer shall lose his eligibility for any rebates, cash discounts etc.
5.5 Our employees and sales representatives shall be entitled to accept payment for an invoice only if they are able to produce a letter of proxy issued to this effect by our company.
5.6 Any complaints with regard to an invoice shall be submitted to us by registered letter or fax within 8 days from the invoice send date. Complaints that are submitted after expiry of said deadline shall not be receivable. If no complaint is submitted to us within said period of 8 days the invoice shall be deemed to be fully accepted by the Buyer.
5.7 If a payment is not settled by its due date we shall as of right, and without giving notice of default, be entitled to charge an interest rate of 12% p.a. Furthermore, the Buyer shall as of right and without receiving notice of default be obliged to pay the Seller a flat-rate compensation in the amount of 15% of the sum owed (without interests), and such compensation payments shall not be less than 50.00 €.
5.8 We also reserve the right to suspend any deliveries in the event of late payment of one or several invoices.
Article 6: Transportation - Packing
6.1 Transportation and loading shall be carried out by the Buyer at his own costs and risks.
In the exceptional cases where we arrange for transportation on behalf of the Buyer, or if a free on board price was agreed, we shall in no event be liable for any accidents or incidents incurred during loading/unloading or in transit, and which may cause damage to the goods or to persons of the Buyer or of third parties.
For the rest, in such cases, the passage of risks to the Buyer or forwarding agent shall take place on delivery of the goods as described in article 3.3.
6.2 It shall be the Buyer’s responsibility to take out any useful insurance at his own cost.
6.3 The delivered goods will be packed, labelled and documented in an appropriate manner to guarantee the physical integrity of products and so that transportation, identification, handling, storage and distribution can be performed in accordance with applicable standards or in workmanlike manner. Packing costs shall be borne by the Buyer.
Article 7: Passage of Ownership – Passage of Risk
7.1 We shall retain title to the goods delivered until all current and future claims on the principal amount, interests or possible costs arising from our business relationship with the Buyer have been paid in full.
7.2. Products that are subject to the Retention of Title clause shall in no case be given as collateral or transferred to a third person (not even as a guarantee), and this until all outstanding payments have been made in full. Furthermore, title in these products cannot not be transferred for security purposes. The Buyer shall inform us at once in writing if third parties obtain claims to our products. In the event of a seizure or a demand for payment in favour of a third party or of any other disposal of property/third-party interventions related to our products, the Buyer shall be obligated to inform us without delay and to notify said third party that the goods are subject to a Retention of Title clause under the general terms and conditions contained herein.
7.3 The Buyer shall be obligated to preserve the products and treat them with care and adequately insure them against any risk of loss or damage.
7.4 The Buyer is allowed to sell and/or process the goods that are subject to retention of title in the course of his normal business activities. In this case the following provisions shall apply:
a) Retention of title shall also be applicable to the total value of the goods created through treatment, mixing or processing of our products. In this case we shall be deemed to be the manufacturer of these goods.
b) In the event of a combination, mixing or processing of our goods with other goods owned by third parties who continue to retain title in their goods, we shall be deemed to be co-owners of the goods based on the relationship between the invoiced amount and the value of the goods concerned. In all other cases the provisions applicable to a delivery of goods subject to retention of title shall also be applied to the newly created products.
c) The Buyer assigns to us all claims against third parties arising from the resale of the goods or newly created goods described under paragraph a) and or paragraph b). This assignment shall cover the amount corresponding to our portion of ownership in the goods. The Buyer’s obligations described in Article 7.1 shall also be applicable to the transfer of claims.
d) The Buyer shall be allowed to collect his claims from third parties provided that he fulfils his obligation to pay us, that no request for the opening of a judicial reorganization of his assets was filed, and that he is not found to have insufficient solvency. In all other cases we shall be entitled to request the Buyer to inform us about the type of claim and disclose the identity of the debtor, to transmit to us all requisite information and useful documents needed to enforce the claim, and to notify the (third party) debtor of the transfer of the debt.
e) If the value of the security to be realized exceeds our security by more than 20 %, we shall release the securities designated by the Buyer on demand of the Buyer.
7.5 The risks shall pass to the Buyer on handover of the goods.
Article 8: Quality of Delivered Goods – Acceptance of Goods
8.1 Our goods are of the quality demanded by industry customs and practices. Every product delivered shall be used exclusively for the purpose defined in the instructions manual. Through his purchase order the Buyer confirms to have full knowledge of the specific properties of the product as well as of its possible uses and limits of use.
8.2 At the time of delivery the Buyer shall be obligated to inspect the goods for defects at this own expense. Any notice of non-conformity or defects must be given by registered letter or fax within no more than 72 hours from delivery. This notice shall comprise a precise description of the defect and summon us to inspect the delivered goods.
If no notice of defects is made within the period and in accordance with the terms specified above, the goods shall be deemed to be unconditionally accepted.
8.3 In the event of a justified notice of non-conformity or of a visible defect we shall have the right to replace the goods, to repair them or to issue a credit note for the invoiced amount against recovery of the goods delivered, excluding any other claims for damages, be they direct or indirect, foreseeable or unforeseeable, material, immaterial or moral, contractual or non-contractual, etc...
Article 9: Warranty - Hidden Defects
9.1 If the product has a manufacturing defect or material defect which impairs its normal use, we will replace the product or the part found to be defective within a reasonable period of time after the delivery date, excluding any other claims for damages, be they direct or indirect, foreseeable or unforeseeable, material, immaterial or moral, contractual or non-contractual, etc... This warranty shall exclusively cover the replacement or repair, at our discretion, of the product found to be defective. This warranty excludes the cost of labour and the cost of transport of the machinery to our workshop. These costs shall always be borne by the Buyer.
9.2 This warranty commences on the date of delivery of the products.
9.3 This warranty is rightfully terminated if the products are used for anything other than their normal intended purpose, if the products are improperly used by the Buyer or end user, if changes are made to the products without our prior consent, if the products contain materials or are completed with materials that were not supplied by us, if they have been repaired by a third party or by the Buyer himself or by any person who is not employed by our company, or if they are not treated or maintained with the care specified by our personnel or by the manufacturer.
In all cases, this warranty expires one year after delivery, except for the mechanical items, the electrical/electronic items and the motors, for which this warranty expires six months from delivery.
9.4 The Buyer is obligated on pain of forfeiture to inform us in writing, without delay and latest within 48 hours from detection of the defect, providing a detailed description of the nature and scope of the defect and requesting us to examine the defective products.
9.5 This warranty covers the replacement of the items found to be defective, within the normal, foreseeable and acceptable limits, and the requisite adjustments resulting from such replacement.
This warranty however does not cover the repairs which may be necessary due to an abnormal use in violation of the instructions for use, due to the Buyer’s incompetence or negligence, or due to neglected or improper maintenance. Also, the warranty does not cover the replacement or repair of wear items beyond a normal period of use.
9.6 Our services performed under the warranty shall not lead to an extension of such warranty, nor shall they be construed as an admission of liability on our part.
Also, the returning of materials to us without our prior consent shall not entail any acceptance on our side of the defectiveness or non-compliance of the returned materials.
9.7 The items submitted to us with a request for warranty service will be destroyed after inspection. However, if the request for warranty service is rejected, such items shall be kept available to the Buyer for 15 days from notification of the result of the warranty claim application, and will be destroyed after this period.
9.8 This warranty is not applicable to used products where we will not be liable for any apparent or latent defects. Such used products are always sold in ‘as-is’ condition. This condition is well known to the Buyer.
Article 10: Termination of Contract
10.1 If the Buyer is at risk of insolvency, for example due to disputed bills of exchange, seizures, social security debts or tax debts, cancellation of bank loans or any voluntary or imposed insolvency proceedings, we shall be entitled as of right to cancel the contract without giving notice of default, and without prejudice to our right to claim additional damages.
10.2 We furthermore reserve the right to terminate the contract as of right and without giving notice, without prejudice to our right to claim further damages, in following cases:
Article 11: Nullity
No clause or part of a clause of the general terms and conditions contained herein that is declared to be void or contrary to applicable laws or to public order legislation shall affect the validity of the other clauses or parts of the general terms and conditions contained herein, nor of said General Terms And Conditions in their entirety. Such clause shall be replaced by a valid clause which shall reflect the common intentions of the parties at the time of signing the contract.
Article 12: Applicable Law
All contracts and contractual agreements shall be governed by Luxemburg law, with the exception of the Retention of Title clause which shall be governed by German law.
Article 13: Place of Jurisdiction
The Court of Commerce (Handelsgericht) of Luxemburg shall have exclusive jurisdiction to settle any dispute that arises out of or in connection with the conclusion, validity, execution, interpretation or cancellation of this contract. However we expressly reserve the right to have the Buyer summoned before the court having jurisdiction at his domicile.
The Jurisdiction clause agreed herein shall remain applicable even in the event of related claims, incidental claims, non-voluntary intervention of third parties, joinder of third parties or introduction of third parties into the proceedings, or in the event of multiple defendants.