Conditions of Sales of Poulten & Graf Ltd
1. Definitions
In these conditions: 1.1. ‘the Comany’ means Poulten & Graf Limited, 1.2 ‘the Customer means the Customer or prospective Customer for any goods from the Company.
2. Agreement
2.1 Unless otherwise agreed in writing by the Company these conditions of sale shall apply to all contracts entered into by the Company to the exclusion of any terms and conditions contained in a Customer’s order or which are referred to by the Customer in correspondence or negotiations and which conflict or purport to modify them.
2.2 The Company shall not be bound by any contract until the Customer’s order has been accepted by the Company in writing. Acceptance of the order shall take place upon the Company posting or faxing its acceptance of the order.
3. Price and Price Lists
3.1. Prices contained in a quotation, price list, catalogue and similar matter shall be based upon current costs ruling at the date thereof and are for guidance only. The contract price shall be the price current at the date of delivery of the goods. The Company endeavours to give adequate notice of any changes in price but all orders are accepted at the price ruling at the date of delivery of the goods.
3.2 Unless otherwise stated prices do not include value added tax which will be chargeable at the rate prevailing at the date of delivery.
3.3 The Company reserves the right to add the cost of carriage to the price of the goods.
4. Delivery
4.1 Delivery shall be deemed to occur and the risk of loss or damage of any kind in the goods shall pass to the Customer on whichever of the following events occur earlier
4.1.1 Collection by or on behalf of the Customer or by a carrier for despatch to the Customer (whether or not such carrier be the Company’s agent or servant)
4.1.2 Seven days from the date of notice given by the Company that the goods are ready for collection or despatch.
4.1.3 The Company shall at the request of the Customer store the goods or arrange for the goods to be despatched or dealt with otherwise than by collection by the Customer. The Company reserves the right to charge the Customer the Company’s reasonable charges for the provision or procurement of such services and payment for such services shall be made within seven days of the date of any invoices sent by the Company in respect thereof. Any such services provided by the Company shall be performed subject to these conditions. In the event that such services are to be provided by a carrier or other Third Party then the Company shall in arranging the provision of the same act only as agent of the Customer and the Customer shall indemnify the Company against the costs, charge, liability or expense thereby incurred by the Company.
4.1.4 The Customer shall carefully examine the goods on receipt of the same. The Company shall not be responsible for breakages or damage after the goods have been delivered in accordance with paragraph 4.1. above. Any carrier should be notified on any breakages within three days of the receipt by the Customer of the goods.
5. Time for and form of Delivery
5.1 Any time stated for delivery is an estimate only and does not form part of the contract.
5.1.1 If the contract does not provide otherwise the Company shall be entitled to deliver goods by single delivery or by instalments as its option.
5.1.2 If the contract provides for delivery by instalments or the Company so elects each instalment shall be deemed to be the subject of a seperate contract on these conditions and without prejudice to sub-paragraph 5.1 hereof no delivery or delay in delivery shall affect the balance of the contract nor entitle the Customer to terminate the same
5.1.3 In the event that the goods shall not have been collected by or on behalf of the Customer or by a carrier for despatch to the Customer within 7 days of the Company’s written notice pursuant to paragraph 4.1.2 hereof the Company may at any time thereafter send to the Customer a further notice notifying the buyer of the Company’s intention to sell the same after the expiration of a period of not less than 7 days from the date of the notice and any such sale by the Company may be on a forced sale basis. The Customer shall be liable for the Company’s charges and expenses for the sale and for the storage of the goods (which shall be at the risk of the Customer) pending their sale hereunder or delivery to the Customer.
6. Performance prevented or hindered
6.1The Company shall not be liable for any delay or failure in carrying out its obligations which is caused wholly or partly by reason of any act of God, delay in transportation, labour disputes, fire, flood, war, or accident, Government action, inability to obtain adequate labour, materials, manufacturing facilities or energy, or for any other cause beyond the Company’s control or that of its servants or agents, and if the delay or failure has continued for a period of 3 months then either party may give notice in writing to the other determining the contract and on such termination the Company shall refund to the Customer the price of the goods or any part thereof after deduction of any amount due to the Company including any amount under paragraph 7 hereof.
7. Payment
7.1 In the case of approved monthly account unless expressly agreed in writing payment shall be made in sterling without any deduction or deferment on account of any disputes or cross claims whatsoever within thirty days following the date of the invoice for the goods. Where full payment is not received by the due date interest shall accrue on the sum outstanding at the rate of 2 % per month calculated on a daily basis but without prejudice to the Company’s rights to receive payments on the due dates.
7.2 In all cases payment shall be on a cash with order or c.o.d. basis or any other basis as agreed between the Company and the Customer.
7.3 Time for payment shall be of the essence and in the event of delay or default in any payment for more than 7 days, the Company shall be entitled to suspend deliveries and/or treat the contract as repudiated and/or re-sell any of the goods in its possession and be indemnified by the Customer for any loss thereby incurred.
7.4 All costs including legal expenses incurred by the Company in recovering overdue debts will be payable by the Customer.
8. Property in goods
8.1 Title to the goods shall pass to the Customer when the goods supplied to the Customer under this or any other contract between the Company and the Customer have been paid for in full.
8.2 Until title to the goods has passed to the Customer in accordance with paragraph 8.1 above, the Customer shall so far as is practicable keep the goods separate from other goods on its premises in such a way that they are clearly identifiable as the property of the Company.
Poulten & Graf Ltd.
Edition 2008
Conditions of Sales of Poulten & Graf GmbH
1. General conditions
Our General Terms of Business are binding for all deliveries and services. We will not accept general terms of business of our contract partners, which differ from our terms of sale, even without explicit objection. Additional agreements have to be confirmed by us in writing. Only German Law and German Text will be applicable. Place of performance is Wertheim. The place for jurisdiction, also for bill transactions, is Wertheim. All important data necessary for business transactions may be stored on computer. All information, which is not public knowledge and which results from the business relationship with our company, must be kept secret from third parties.
2. Offers
Our offers are always without engagement. In order to be valid, all transactions, orders and other agreements require our confirmation in writing. Our written order confirmation or agreement shall determine the nature and scope of the delivery. We reserve the right to make technical alterations to the offered products.
3. Risk, conditions of delivery and non-acceptance of delivery
The risk of ownership will be transferred to the buyer, as soon as the goods leave our company even in the event of delivery carriage-paid. Complaints can only be taken into account if submitted within 8 days of receipt of the goods. Delivered goods will only be accepted for return in their original packing. Illustrations and brochures etc. are not binding. Measurements and utilisation data are only to be regarded as approximate and are not binding.
Deliveries will be made ex factory, packing and insurance excluded, if no other agreement exists. Packing material of any kind may be returned to us within the range of legal regulations applicable to us. We will not pay for the cost of return of packing materials. In the event that dispatch or delivery is delayed at the request of the customer or for reasons for which he is responsible, the risk shall pass to the customer for the period of the delay, however at the request of the customer, we will arrange insurance cover that he requires at his expense.
Partial deliveries are permissible. Surplus quantities within the normal range (up to 15 %) are permissible and must be accepted and paid for by the customer. In case of delayed acceptance of the goods, we may sell the items at the customer’s expense to a third party or we may ask for compensation.
4. Delivery times and Unforeseen Circumstances
Indicated delivery times are without obligation, unless a binding delivery time has been fixed in writing. Deliveries may be delayed due to Act of God or strikes, interruption of work, shortage of raw materials or failure to deliver by our suppliers. Liability for delayed delivery will be limited to proven, gross negligence, caused by us.
5. Special productions
Products, which are manufactured according to drawings, samples or instructions of the customer, cannot be returned. This includes in particular individual software for computers, delivered by us. All kinds of software delivered are subject to copyright and may be neither copied, modified nor presented in public without our prior written permission. Additional quantities within the normal range (up to 15 %) are permissible and must be accepted and paid for by the customer,unless exact quantities have been agreed upon in writing. The customer is responsible for ensuring that products manufactured according to his instructions, do not interfere with any trade right, copyright or other rights of a third party. The customer must compensate all damages resulting from any violation of such rights.
6. Payment conditions, prices, delayed payment
Products will be invoiced in EURO at the prices in effect on the day of delivery. Prices are ex factory excluding packaging and transportation insurance with immediate payment, unless otherwise provided. We reserve the right to include additional payment conditions for new customers. The customer may only set off payment against counter-claims, which are undisputed or legally determined. In case of delayed payment, we reserve the right to charge the customer with all costs as well as interest at 3 % above the respective EURIBOR 3 Month interest rate.
7. Warranty Claims
Warranty claims shall be recognised, if the defect has been reported to us in writing within 12 months of the delivery date. To the exclusion of further claims – subject to section 8 – we will provide a warranty as follows:
7.1 We shall have the option to either replace or to carry out repairs free of charge on all those parts which prove to be defective due to circumstances which occurred prior to the transfer of risk. The discovery of such defects must be reported to us immediately in writing. Parts replaced will become our property.
7.2 If we have to supply according to drawings, specifications, samples etc. provided by the customer, then the customer carries the risk of suitability for intended purpose. The deciding factor for the condition of the goods conforming to the agreement is the point in time of the transfer of risk according to section 3.
7.3 If a final inspection of the goods has been agreed or an inspection of the first sample, then customer’s complaints will not be recognised later concerning defects which the customer should have noticed at the final inspection or inspection of the first sample if it had been carried out with due care and attention.
7.4 We must be given an opportunity to confirm the defect the complaint is being made about. Rejected goods must be returned to us immediately on demand. We will bear the transport costs if the customer complaint is justified. If the customer does not comply with these obligations or makes changes to the rejected goods without our agreement, then he forfeits any claims under warranty of quality.
7.5We will bear the costs for replacement of goods including transport and reasonable costs for disassembly and assembly incurred due to the rectification of defects or the replacement delivery, providing the complaint proves to be justified,
7.6 Within the framework of legal provisions, the customer has the right to withdraw from the contract if, taking the legal exceptions into consideration, we do not successfully make use of a reasonable period of time given to us for rectification of defects or a replacement delivery due to a defect. If the defect is not significant, then the customer only has the right to claim a reduction of the contractual price. In all other cases the right to a reduction of the agreed price is excluded.
7.7 No warranty will be given in the following cases in particular: Unsuitable or inappropriate use, faulty installation or start-up by the customer or a third party, normal wear and tear, incorrect or negligent treatment, maintenance not carried out correctly, chemical, electrochemical or electrical influences providing we are not liable for them.
7.8 If the customer or a third party reworks the goods incorrectly, then we are not liable for the consequences arising from this. The same applies to changes made to the delivered item without our prior agreement.
7.9 We only provide a warranty for accessories added on within the framework of the warranty provided by our supplier.
8. Liability
8.1 If we are responsible for the customer not being able to use the delivery item as stipulated in the contract as a consequence of suggestions made and consultations carried out before or after the contract was concluded which were omitted or carried out incorrectly or through infringing upon other subsidiary obligations - in particular instructions for operating and maintaining the delivery item - then to the exclusion of further claims made by the customer, the stipulations in sections 7 and 8.2 apply correspondingly.
8.2 For damages, which have not been incurred by the delivered item itself, we only accept liability - whatever legal reasons are given - in the case of
- intent,
- gross negligence by executive employees,
- culpable injury of life, body, health,
- malicious silence with regard to a defect or where a defect’s non-existence had been guaranteed
- defects of the delivery item for which liability must be accepted according to German Law on Product Liability for damages to persons or property with regards to privately used objects.
In the case of culpable infringement of essential contractual obligations, we also accept liability for gross negligence of non-executive employees and in the case of slight negligence, in the latter case limited to reasonable, foreseeable damages typical to a contract.
Any further claims shall be excluded.
9. Reservation of proprietary rights
The delivered goods remain our property until complete payment. If the goods are resold or processed by the buyer, we are to be considered as manufacturer according to § 950 BGB and achieve the property of all intermediate or final products. The processing party is only the depositary.
For other items, which are not our property, we achieve the co-property of this new product in proportion to the goods reserved to the other components. The goods may only be sold within ordinary and regular business transactions and only, if claims arising from resale have not been assigned to a third party. The claims of the buyer resulting from resale are to be considered as assigned to us upon conclusion of the contract of sale. This is also valid, if our goods are combined or processed with other items. In this case, the assigned claims serve as our security only to the extent of the value of the merchandise sold under reservation of proprietary rights. The buyer is obliged to provide us with the names of third party debtors upon request and to inform them about the assignment. Amounts, which have been collected by him, have to be paid over to us, if our claims are due for payment. Distraints and hypothecations of the goods under reservation of proprietary rights or of the assigned claims are not permissible. The buyer has to inform us immediately about any access of a third party to the goods under reserve of proprietary rights or to the claims assigned to us. In the event of sales to foreign countries, should the retention of title not be admitted with the same effect as under German Law, the goods involved will remain our property until payment of all our claims resulting from the contractual relationship brought about by sale of said goods. In case, however, this retention of title is not admitted with the same effect as under German Law, but if it is allowed to reserve other rights to said goods, we will be entitled to exercise all of these rights. The buyer will be obliged to co-operate in all measures that we take for the protection of our right of ownership or, in its place, of any other title to the goods.
10. Tools
Tools, moulds or other devices incorporating our know-how, which have been produced by us or handed over to the customer, remain our property, even if the customer has paid the costs for these in part or in full.
11. Statutory Limitation
All claims made by the customer - for whatever legal reasons - are subject to a limitation period of 12 months. For wilful or fraudulent behaviour and for claims based on the German Product Liability Law, the legal limitations apply.
Tel. 0049 9342/92290 – Fax 0049 9342/922980 ´
e-Mail: FORTUNApoulten-grafcom
12. Validity of the Agreement
Should one or more of the provisions of this Agreement be or become invalid for any reason, the provisions should be interpreted to ensure that the commercial aim of the original, invalid provision is upheld. The validity of the remaining provisions will remain unaffected.
New Edition 10/2007
Poulten & Graf GmbH
Am Bildacker 3 – 7
D-97877 Wertheim