Standard Terms and Conditions for the Sale of Goods of AFT GmbH
- Scope of Application
These Standard Terms and Conditions for the Sale of Goods shall exclusively apply, save as varied by express agreement accepted in writing by both parties.
The offer, order acknowledgment, order acceptance of sale of any products covered herein is conditioned upon the terms contained in this instrument. Any conditional or different terms proposed by the buyer are objected to and will not be binding upon the AFT unless assented in writing by the AFT. These conditions shall govern any future individual contract of sale between the AFT and the buyer to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the buyer.
Any typographical, clerical or other error or omission in any sales literature, quoation, price list, acceptance of offer, invoice or other document of information issued by the AFT shall be subject to correction without any liability on the part of the AFT. These Standard Terms and Conditions shall exclusively govern all existing and future business relationship; they shall apply to companies and to legal entities of public law as well as to separate assets governed by public law. Companies according to these terms and conditions are all natural and corporate bodies or partnerships having legal capacity, who are acting in pursuance of a commercial or self employed professional occupation and with whom AFT gets into business relationship.
- Orders and Specifications
No order submitted by the buyer shall be deemed to be accepted by the AFT unless and until cqonfirmed in writing by the AFT or the AFT’s representative within 21 days after submittal. The quantity, quality and description of and any specification for the goods shall be those set out in the AFT’s quotation (if accepted by the buyer) or the buyer’s order (if accepted by the AFT). Any such specification, sales literature, quotation etc. shall be strictly confidential and must not be made available to third parties. The buyer shall be responsible for the AFT for ensuring the accuracy of the terms of any order submitted by the buyer, and for giving the AFT any necessary information relating to the goods within a sufficient time to enable the AFT to perform the contract in accordance with its terms. If the goods are to be manufactured or any process is to applied to the goods by the AFT in accordance with a specification submitted by the buyer, the buyer shall indemnify the AFT against all loss, damages, costs and expenses awarded against or incurred by the AFT in connection with or paid or agreed to be paid by the AFT in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual rights of any other person which results from the AFT’s use of the buyer’s specification.
The AFT reserves the right to make any changes in the specification of the goods which are required to conform with any applicable statutory requirements or, where the goods are to be supplied to the AFT’s specification, which do not materially affect their quality pr performance.
- Price of the Goods
The price of the goods shall be the AFT’s quoted price or, where no price has been quoted, the price listed in the AFT’s published price list current at the date of acceptance of the order. Where the Goods are supplied for export from Germany, the AFT’s published export price list shall apply. The AFT reserves the right, by giving notice to the buyer at any time before delivery, to increase the price of the goods to reflect increase in the cost to the AFT which is due to any factor beyond the control of the AFT (such as foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of materials or other costs of manufacture) or any change in delivery dates. Except as otherwise stated under the terms of any quotation or in any price list of the AFT, and unless otherwise agreed in writing between the buyer and the AFT, all prices are given by the AFT on an ex works basis, and where the AFT agrees to deliver the Goods otherwise than at the AFT’s premises, the buyer shall be liable to pay the AFT’s charges for transport, packaging and insurance.
- Terms of Payment
The buyer shall pay the price for the goods at receipt of the dispatch note of AFT, unless otherwise agreed.
Payment shall be effected by interbank payment transaction only; no cheque or bill of exchange will be considered as fulfilment of the payment obligation. It may be agreed between the parties that the buyer has to deliver a letter of credit issued by his bank (or any bank acceptable to the AFT). In this individual case it is assumed that any letter of credit will be issued in accordance with the Uniform Customs and Practice for Documentary Credits, 1993 Revision, ICC Publication No. 500. If the buyer fails of make any payment on the due date then, without prejudice to any other right or remedy available to the AFT, the AFT shall at his discretion be entitled to:
– cancel the contract or suspend any further deliveries to the purchaser; or
– charge the buyer interest on the amount unpaid, at the rate of 8 per cent per annum above European Central Bank reference rate from then being valid, until payment in full is made. The buyer shall be entitled to prove that the delay of payment caused no or little damage only.
Delivery of the Goods shall be made by the buyer collecting the Goods at the AFT’s premises at any time after the AFT has notified the buyer that the goods are ready for collection or, if some other place for delivery is agreed by the AFT, by the AFT delivering the Goods to that place. Where delivery of the Goods is to be made by the AFT in bulk, the AFT reserves the right to deliver up to 3% more or 3% less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be in the quantity ordered.
The time of delivery is as contractually agreed. The time of delivery or deadlines for delivery must be confirmed by AFT in writing in order to become binding. The time of delivery will only be kept if the buyer fulfils his contractual obligations. Otherwise the time until when delivery ha to take place will be reasonably extended. The time of delivery will only be observed if AFT itself got the supply necessary for that delivery on time and in the appropriate way. This applies only, unless AFT is liable for not having been delivered by ist supplier, especially in case of a hedging transaction with its supplier. Delivery time or deadlines for delivery are extended reasonably, if AFT is from the performance on time prevented by force majeure, e.g. by strikes or other circumstances for which AFT is not liable. This also applies if these circumstances occured at the suppliers of AFT. AFT is not liable for any damages resulting from those delays. In case of damages arising from a delay AFT is liable for, the compensation for these damages which AFT eventually has to pay is limited to a compensation for those typical damages which are foreseeable at the time of formation of the contract. Furthermore, the compensation for these damages is limited to 0,5 % per working week of delay up to a maximum being 5 % of the contractual price of that part of the delivery which can not be used in time or in the contractual way due to this delay. Further claims of the buyer are excluded. This limit shall not apply if the business had to be settled on a fixed date or if the delay was caused negligently or intentionally by the AFT, its agents or representatives or if there is any further breach of any essential contractual obligation. AFT is entitled to partly deliveries or performances, unless the fulfilment of the contract in part is not of interest for the buyer.
If for any reason whatever the AFT fails within such time of effect delivery, the buyer shall be entitled by notice in writing to the AFT to fix a deadline after the expiry of which the buyer shall be entitled to terminate the contract. He may also recover from the AFT any loss suffered by the buyer by reason of the failure of the AFT. Damages may only be claimed for by the buyer if the AFT (or his representatives) intentionally or negligently failed to fulfil the contract. The AFT shall nevertheless be held responsible for not fulfilling any further essential contractual obligation.
If the buyer fails to accept delivery on due date, he shall nevertheless make any payment conditional on delivery as if the goods had been
delivered. The AFT shall arrange for the storage of the goods at the risk and cost of the buyer. If required by the buyer the AFT shall insure the goods at the cost of the buyer.
- Transfer of Risks
Risk of damage to or loss of the goods shall pass to the buyer as follows:
– in the case of goods to be delivered otherwise than at the AFT’s premises, at the time of delivery or, if the buyer wrongfully fails to take delivery of the goods, the time when the AFT has tendered delivery of the goods;
– in the case of goods to be delivered at the AFT’s premises (“ex works”, Incoterms 2000) at that time when the AFT notifies the buyer that the goods are available for collection.
- Retention of Title
Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these conditions, the property in the Goods shall not pass to the buyer until the AFT has received payment in full of the price of the Goods and all other Goods agreed to be sold by the AFT to the buyer for which payment is then due. After termination of the contract the AFT shall have absolute authority to retake, sell or otherwise deal with or dispose of all or any part of the goods. Until such time as the property in the Goods passes to the buyer, the buyer shall hold the Goods as the AFT’s fiduciary agent, and shall keep the Goods properly stored, protected and insured. Until that time the buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the AFT for the proceeds of sale or otherwise of the Goods includings insurance proceeds, and shall keep all such proceeds separate form any moneys or properties of the buyer and third parties.
By way of security the Purchaser already assigns to us claims against third parties arising from reselling. Until such time as right is revoked ort he Purchaser ceases making payments to us, the Purchaser shall be authorised to collect on these claims for our account. The Purchaser shall not be authorised to assign this claim, not even fort he purpose of collecting on a claim by way of factoring, unless the factor is at the same time obliged to pay consideration directly to us in the sum of our portion of the claim as long as we still have claims against the Purchaser.
If the Goods are processed or reshaped by the buyer and if processing is done with Goods that AFT has no property in, AFT shall become co-owner of the Goods. The same shall apply if AFT’s Goods are completely reshaped and mixed with other goods.
If third parties take up steps to pledge to otherwise dispose of the goods, the buyer shall immediately notify the AFT in order to enable the AFT to seek a court injunction in accordance with § 771 of the German Code of Civil Procedure. If the buyer fails to do so in due time he will be held liable for any damages caused.
The AFT shall on demand of the buyer release any part of the collateral if the value of the collateral held in favour of the AFT exceeds the value of the claims being secured. It is to the AFT’s decision to release those parts of the collateral suitable for him.
- Warranties and Exclusion Clauses
The buyer shall examine the Goods as required by German Law (§ 377 of the German Commercial Code) and in doing so check every delivery in any respect. The AFT warrants that all items delivered under this agreement will be free from defects in material and workmanship, conform to applicable specifications, and, to the extent that detailed designs have not been furnished by the buyer, will be free from design defects and suitable for the purposes intended by the buyer.
The good bought is certified according to ________________________.
AFT warrants that the good bought has the properties and specifications which are necessary for the respective certification of the good and that it is appropriate for the use it is certified for. However, AFT does not take any liability for the goods to be appropriate for a use different from that for which the good is certified, unless AFT has expressly given ist consent with that particular use or purpose.
The above warranty is given by the AFT subject to the following conditions:
– the AFT shall not be liable in respect of any defect in the goods arising from any design or specification supplied by the buyer;
– the AFT shall not be liable under the above warranty if the total price for the goods has not been paid by the due date for payment;
– the above warranty does not extend to parts, materials or equipment manufactured by or on behalf of the buyer unless such warranty is given by the manufacturer to the AFT.
This warranty does not cover defects in or damage to the products which are due to improper installation or maintenance, misuse, neclect or any cause other than ordinary commercial application. Any discharge from liability will be void if a defect results from a negligent or intentional breach of contract on the part of the AFT. The same applies if the AFT may be held responsible for the breach of any further essential contractual obligation. Any claim by the buyer which is based on any defect in the quality or condition of the goods or their failure to correspond with specification shall be notified to the AFT within twelve months from the date of delivery. The buyer is entitled to demand the delivery of any substitute goods or repair.
In case of any valid claim in respect of any goods which is based on any defect in the quality or condition of the goods or their failure to meet specification is notified to AFT in accordance with these Conditions, AFT shall be entitled at the AFT’s sole discretion to either replace the goods free of charge or repair the goods. If the AFT is neither ready nor able to either repair or replace the goods the buyer shall be entitled at the buyer’s sole discretion to claim for a reduction of price or the cancellation of the contract.
- Miscellaneous Clauses
The AFT reserves the right to improve or modify any of the products without prior notice, provided that such improvement or modification shall not affect the form and function of the product. This agreement supersedes and invalidates all other commitment and warranties relating to the subject matter hereof which may have been made by the parties either orally or in writing prior the date hereof, and which shall become null and void from the date of the agreement is signed. This agreement shall not be assigned or transferred by either party except with the written consent of the other. Each party shall be responsible for all its legal, accountancy or other costs and expenses incurred in the performance of its obligation hereunder.
- Choice of Law; Place of Jurisdiction
This agreement shall be governed by and construed in accordance with German law and each party agrees to submit tho the jurisdiction of the courts having jurisdiction for the AFT. The AFT shall have the right to bring a claim before a court at the buyer’s principal place of business or at his discretion before any other court being competent according to any national or international law.