Terms and Conditions
- Our deliveries are based on these conditions of sale. Verbal side-agreements, subsequent amendments to the contract, the acknowledgement of the Purchaser’s standard terms and conditions, as well as the assurance that the goods delivered will have certain qualities, require our written confirmation in order to be valid.
- The Purchaser bears the risk of the erroneous transmission of faxed orders, orders by telephone or telex, as well as of instructions.
II. Conclusion of a contract
- Our quotations are subject to change. We reserve title and copyright to quotations, drawings, technical information and other documents; they may only be disclosed to third parties subject to our prior consent. .
- The Purchaser is bound by their order after we have received the order. A purchase contract will be concluded through our written confirmation or our invoice. Our written order confirmation is binding with respect to the scope of the delivery, unless the Purchaser immediately contradicts any deviations in the order in writing. We are only bound by amendments and additions to the contract when we have confirmed them in writing.
- Technical data, operating costs, consumption values, output, weights, dimensions etc. are only approximate values. Output data and rotation speeds in the case of engines are deemed to be proven by test bed results in the manufacturer’s factory. We reserve the right to make changes to the design and shape of the goods delivered, as well as the materials used, provided the article delivered is not thoroughly altered as a result and the changes are reasonable from the Purchaser’s point of view.
- The transfer of the Purchaser’s rights and obligations in the contract to third parties requires our prior written consent.
- Prices are invoiced in EURO of the German Central Bank (EUR); the prices are deemed to be net ex-factory without the deduction of cash discounts or other rebates. Packaging, insurance, customs and any other costs, such as consular certificates and certificates of origin, will be paid by the Purchaser. The prices valid on the day of delivery will be invoiced; in the case of goods delivered within the Federal Republic of Germany, the Purchaser will be required in addition to pay the value added tax at the rate stipulated by law at the time.
IV. Payment conditions
- Unless anything different has been agreed, payments are due as follows in EURO without any deduction:
– 30% of the total purchase price at the time of the order.
– 70% at the time the individual deliveries are declared ready for shipment
- Payments in discharge of all obligations may only be made to us or to persons expressly vested by us with authority to collect the debt. Payments will only be considered to have been made to the extent that we are free to dispose of them at the bank. Bank charges will be borne by the Purchaser. No interest will be paid on down-payments. Payment instructions, cheques and bills of exchange will only be accepted subject to a separate agreement and only in lieu of payment and the invoicing of all collection and discounting charges.
- The Purchaser may only offset our claims or exercise the right to withhold payment provided he has a title which has the force of law.
- Notwithstanding other legal claims, interest at the rate of 10.7% as well as additional fees and financing costs will be charged without a reminder should payments be made later than agreed.
V. Reservation of title
- All goods delivered will remain our property until the Purchaser has completely fulfilled all obligations arising from our business relationship with the Purchaser.
- Any processing or re-working of the reserved goods as well as their combination with goods which are not our property by the Purchaser or third parties is carried out on our behalf. We are entitled to co-ownership within the meaning of this section V of new goods arising from this process in proportion to the value of the goods delivered.
- We consent to the Purchaser re-selling the reserved goods as part of his normal business operations, subject to cancellation and the provisions of section. (8). The Purchaser is forbidden to pawn the goods or to transfer title as collateral. The Purchaser assigns his claims from the re-sale of the goods to us with immediate effect as security for our claims and to the extent of our claims. The Purchaser is entitled and required until further notice to collect the claims assigned to us. This entitlement to collect will end, even without any express cancellation, should he cease to make payments.
- We will release – at our option – the collateral to which we are entitled in accordance with the above provisions to the extent that their value exceeds the claims to be secured by more than 20%.
- The Purchaser is required to store the reserved goods carefully on our behalf, to maintain them in a technically flawless condition and to have any repairs which become necessary carried out immediately.
- During the time that the goods are reserved, the Purchaser is required at our request to insure them at their current residual value against all risks to the extent we stipulate, subject to the proviso that we are entitled to the rights under the insurance policy. We are entitled to the insurance certificate customary in business transactions.
- The Purchaser is required to notify us immediately should the reserved goods be attached or subject to other obstacles to the owner’s interests.
- Should the Purchaser fail to fulfil his payment and insurance obligations or the obligations arising from the reservation of title including the assignment of claims, we will receive the notifications from the insurer provided for in the insurance certificate on account of the Purchaser’s conduct; should the customer cease to make payments or court settlement proceedings or bankruptcy be opened on his assets, the whole of the residual debt will become due. Also should bills of exchange with a later maturity still be open and any right of the Purchaser to dispose of the goods in accordance with section (3) will be forfeited. Should the whole residual debt not be paid immediately, the Purchaser will forfeit the right to use the reserved goods. We will then be entitled to demand the immediate return of the reserved goods subject to the exclusion of any right to withhold the goods and to re-possess them from the Purchaser. We will also undertake the re-possession of reserved goods in which third parties have rights of co-ownership on behalf of the co-owner. The Purchaser will bear all the costs incurred through the re-possession and disposal of the reserved goods. Irrespective of the Purchaser’s obligation to pay, we are entitled – in consultation with the co-owner as the case may be – and, to dispose of the re-possessed reserved goods including accessories in the best way possible through sale on the open market or by public auction. The proceeds, after deduction of the costs, will be paid to the Purchaser, unless a third party is or we are entitled to them in order to cover open claims.
- Should the country on whose territory the reserved goods are located not permit reservation of title, but permits the supplier to reserve other rights to the goods delivered, we may exercise all rights of this kind. The Purchaser is required at its own expense to take all measures which are required to make reservation of title, or or an alternative title to the goods delivered, effective and to maintain this right.
- Shipments will be made from the delivery factory. Part-shipments are permitted. We endeavour to comply with the delivery dates stated, subject to the condition that we receive all the documents required in order to carry out the order by the agreed date on time and the Purchaser fulfils his other contractual obligations (i.e. down-payments, provision of letters of credit etc). Should the Purchaser fail to fulfil his contractual obligations on time or in the event of some other interruption of the work agreed by contract caused by the Purchaser, we are entitled to extend the delivery date accordingly. The delivery date will also be extended as appropriate should events occur which are beyond our influence (e.g. strikes and lock-outs, disturbances of operations and delays by our suppliers as well as cases of force majeure). We undertake to notify the Purchaser of such events. We will also not be responsible for the events referred to above should they occur during a delay.
- We reserve the right to offer the Purchaser a product to be delivered of some other design or type, should the design or type ordered no longer be manufactured by the planned delivery date. We are not obliged to deliver the goods originally ordered or to provide compensation for non-fulfilment.
- Acceptance of the goods delivered will occur once loading begins at the delivery factory.
- Should the Purchaser fall into arrears in accepting the goods delivered or in issuing the order to ship or making the agreed payments or providing the agreed collateral after notice has been received that the goods are ready for shipment, we are entitled, having set a grace period of two weeks, to rescind the contract or to demand compensation on account of non-fulfilment or inadequate fulfilment. In the latter case, we are entitled to demand either 20% of the purchase price as compensation, subject to the exclusion of any higher claims and without the necessity for proof, or the reimbursement of the damages we have actually incurred. Should we not make use of this right – notwithstanding our other rights – we are entitled to dispose freely of the article delivered and to deliver a similar product within a reasonable period of time at the same contractual conditions in its place.
- Shipment will be made from the delivery factory in accordance with our best judgement but without any undertaking to use the cheapest form of freight.
- The Purchaser will bear the risk of spoilage and destruction from the time loading begins in the delivery factory. Should the product to be delivered be ready for shipment and should the shipment be delayed for reasons for which we are not responsible, risk will pass to the Purchaser at the time he receives notice that the goods are ready for shipment. This also applies to part-shipments.
- Packaging will be charged at the costs actually incurred. The company’s own loading equipment, such as containers and pallets, will remain our property. The Purchaser will treat these articles carefully and return them at no expense.
- We will conclude insurance cover for land, sea and air freight for the Purchaser’s account and at his request. The Purchaser will pay the costs.
IX. Installation and assembly
The following provisions will apply to installation and assembly:
- The Purchaser is required to pay for and to provide on time:
– all excavation, construction and ancillary work unrelated to the nature of the business, including the associated technical and auxiliary personnel, building materials and tools.
– the equipment and materials required for the purposes of assembly and commissioning, such as scaffolding, lifting gear and other implements, fuel and lubricants, energy and water at the place of use, including connections, heating and lighting,
– sufficient large, suitable, dry and lockable premises at the place of assembly to store machine parts, apparatus, materials, tools etc. and appropriate working and recreation space for the assembly staff and appropriate sanitary installations; moreover, the Purchaser is required to take the measures at the building site to protect the supplier’s and assembly personnel’s possessions as he would take to protect his own possessions, protective clothing and equipment required as a consequence of the particular circumstances at the assembly site.
- Packaging will be charged at the cost actually incurred. The company’s own loading equipment, such as containers and pallets, will remain our property. The Purchaser will treat these articles carefully and return them at no expense.
- Before work begins, the Purchaser is required to provide unsolicited the necessary information on the location of the route taken by concealed electricity, gas and water conduits or similar equipment, as well as the required static data.
- Before installation or assembly begins, the materials to be provided by the Purchaser and equipment required in order to begin work must be in place at the installation or assembly location and all preparatory work must be sufficiently advanced before construction begins, so that the installation or assembly can be started as agreed and carried out without interruption. Approach roads and the area of the installation or assembly must be level and cleared of obstacles.
- Should installation, assembly or commissioning be delayed by circumstances for which the supplier is not responsible, the Purchaser will be required to pay reasonable costs of waiting times and additional trips that the supplier or the assembly personnel are required to make.
- Should the supplier demand that the delivery be accepted after completion, the Purchaser is required to carry out this inspection within a week. Acceptance will be deemed to have taken place should this not have been carried out. Acceptance will also be deemed to have taken place should use of the delivery – where applicable after the completion of an agreed test phase – already have started.
The warranty period for a new product delivered is 18 months from the date of delivery from the factory, or 12 months from the date of commissioning, whichever occurs first.
Components which are not produced or manufactured by GGG German Generator GmbH will be covered by the original manufacturer’s warranty.
The WARRANTY DOES NOT COVER the rental of replacement equipment during repairs.
There will be no obligation to provide warranty should the defect identified be due to the following factors:
- natural wear and tear, incorrect handling, storage or installation, inadequate protection from corrosion, the effects of deliberate force, improper installation, chemical, electrical or other damaging effects;
- for direct or indirect damage or any ancillary effects that are responsible for the failure of a part.
- should the product delivered have been changed by a third party or due to the installation or attachment of parts of third party origin;
- should the Purchaser not have followed the instructions on use, maintenance and operation;
- should the Purchaser have changed the standard setting or parameter as well as the agreed performance characteristic on the equipment.
- should the product delivered be used for purposes other than those agreed;
- should the product delivered be used under exceptional operating conditions.
- should the product delivered have received unauthorised repairs (not by the manufacturer) or additional modifications.
- Should the engine be operated using other fuel (e.g. vegetable oil, palm oil etc.) than standard diesel. (super unleaded in the case of petrol engines). In the event of conversion to vegetable oil, the Purchaser is required to conclude an engine/generator warranty insurance or breakage insurance.
- Services in accordance with this section pre-suppose that the Purchaser complies with his contractual obligations and reports the defect to us in writing immediately (within 10 days) after it has been identified, stating the factory number of the product delivered.
- The following will apply should we have acknowledged a defect:a. The defect parts will at our option be repaired or replaced at the delivery factory, at a workshop appointed by us or at the place of use subsequent re-working.b. Should reworking by us be unreasonable for the Purchaser, the Purchaser may, with our consent, carry out the rework himself or have it carried out by a third party. We will reimburse the expenses incurred up to the maximum amount which we would have incurred had we carried out the re-working.c. Should re-working be carried out at the delivery factory or at a workshop appointed by us, the Purchaser is required to send the parts complained of – or if necessary the complete product delivered – at his own expense to the delivery factory or to the workshop.d. Should the re-working be carried out at the place of use, our staff must be provided with the required work force and auxiliary materials.e. We assume the freight costs of the cheapest form of transport of the reworked parts or parts delivered as a replacement.f. We will not pay the costs of dismantling and installing the complete product delivered nor any additional ancillary costs.g. Replaced parts will become our property.h. Should re-working be possible but incur disproportionate costs, an adequate price reduction will be granted instead of re-working, should the Purchaser be able to use the product delivered for the purpose foreseen in a manner that is reasonable for him without the defect having been eliminated.
Irrespective of the legal reason (including positive breach of contract and actionable tort), we will only provide compensation for direct or indirect damage should we or our senior employees be guilty of gross negligence. Claims against our employees or other vicarious agents are excluded, should we ourselves not be liable.
XII. Place of fulfilment
The place of fulfilment for our deliveries is Düsseldorf.
XIII. Place of jurisdiction, applicable law
The sole place of jurisdiction for all claims arising from the business relationship (private individuals as well as companies) including bill of exchange and cheque claims is Düsseldorf. We are also entitled to lodge claims against the Purchaser at his place of residence or registered office. The relations between the contractual parties are exclusively regulated by the laws of the Federal Republic of Germany, application of the UN Sales Convention (CISG) is excluded. It is expressly specified that this choice of law is also to be understood as one in the meaning of Art. 14 (1b) Regulation (EC) No. 864/2007 and thus shall also apply to noncontractual claims within the meaning of this regulation. Should it be mandatory to apply foreign laws, our terms and conditions are to be interpreted in such a way that its economic purpose is preserved to the maximum extent possible
Standard Terms and Conditions of GGG German Generator GmbH: as of 02/2004