Delivery Conditions of EPHY-MESS GmbH
1. Conclusion of Contract
The general conditions set out below apply to the contract, subject only to any variation expressly agreed in writing by the contracting parties.These conditions take precedence over any conditions of purchase to the contrary specified by the purchaser. All offers and quotations are subject to alternation. All orders and agreements will only be binding for us when written confirmation has been made by us or delivery made within in scope of the conditions set out below.
All prices shall be understood to be subject to alternation ex place of delivery and exclusive of packing. In the absence of an express agreement in variation, our prices are applicable only to supplies made in a single delivery and likewise to a single station, irrespective of any other.
Transport is at the risk of the purchaser. The risk for the goods shall pass to the purchaser as soon as the goods leave the works or are handed over to a forwarding agent or carrier, even when your prices are quoted carriage paid. If delivery by us is overdue by an agreed delivery date, the purchaser after the expiry of a reasonable extension of the time fixed by him without delivery having been made shall be entitled to terminate the contract. Further claims, insofar as the law permits, are excluded. If the purchaser does not accept the delivery on the date agreed in thecontract, he shall be liable for payment of all charges arising in connection with the delivery, as if the delivery had been made. We are entitled to store the goods at the expense and risk of the purchaser with third parties, if we cannot retain custody of them at our own premises without prejudice to our company's activities.
4. Force Majeure
Breakdown of production facilities, exceeding of delivery dates by suppliers and sub-contractors to us, shortage of raw materials, energy or labour, strikes, lockouts, difficulties in procuring means of transport, traffic delays or stoppages, government orders or injunctions and other unforeseen circumstances of force majeure shall relieve us for the duration of the circumstances and to the extent of their effect from the obligation to deliver. These reasons entitle us besides without further liability to terminate the contract insofar as completion is still outstanding.
Packaging shall be charged at the cost price.
All deliveries are freight collected ex fabric on account and risk of the orderer. Without the customer's requirement, we choose the most economic method of freight at our discretion. We choose the best delivery freight at our best discretion, if the customer provides no requirements.
Our invoices are payable net according to the respective agreement. The date of payment shall be the date on which we have disposal of the sum in question at our bank. Checks are accepted only by special arrangement for payment. All the expenses thereby incurred will be charged the purchaser. For delayed payment we charge from the due date 8% above the base lending rate of the German Federal Bank.
Complaints regarding the quality or quantity are to be notified to us immediately after the arrival of the goods with the purchaser at the specified destination, not later than 7 days of arrival, in writing and in sufficient detail for us to be able to examine if there is just cause for complaints. Complaints made do not relieve the purchaser from the obligation to make payment. Goods may only be returned with our explicit prior consent. In case of justifiable complaint notified duly and promptly, the purchaser is entitled and our option to a reduction in price, goods in replacement, exchange of goods or return of the goods in compensation for the purchase price. Further claims, even arising out of positive breach of contract or indebtedness before or a conclusion of the contract, insofar as the law permits, are excluded. Claims for damages in particular arising from impossibility of performance, from positive breach of claim, from indebtedness on conclusion of the contract and from unlawful acts are excluded insofar as no premeditated or gross act of negligence exists on the part of the supplier or his assistants un the performance or execution. We undertake liability for defects or damage only if these do not arise at a result of weather effects or improper storage or if the goods complained of have not yet been further processed, mixed, combined with other goods, transformed or used in any other way. Should these limitations on liability be ineffective in individual cases the purchase price proportionally of the quantity of goods complained of shall be deemed the maximum indemnity payable for the damage.
9. Advisory Service
Our technical application and development department as well as our other departments and agents will advise the purchaser to the best of their ability on the basis of current industrial practice and of our own developments and accumulated knowledge and experience. Our advisory service operates however without guarantee of any kind constituting liability for claims against it, insofar as the law permits, and does not absolve the purchaser from the obligation to care and diligence in verifying our suggestions for use by his own tests under the respective operating conditions
10. Retention of title to property
The goods delivered shall remain our property until full payment of the purchase price has been made and until final settlement of all obligations already incurred within the business relationship or of those sti ll outstanding. The purchaser may have disposal of the goods in the normal course of business. The right to pledge the goods to third parties or to assign them as security is excluded. In case of threatened distraint, the purchaser is under obligation to lodge immediate objection and to inform us without delay. We are considered the manufacturer in the sense of § 950 BGB (German Civil Code) and acquire ownership of the intermediate and end products in proportion to the invoice value of our conditional goods to the invoice values of the third party goods. The same applies to combination or mixing of conditional goods with third party goods in the sense of §§ 947, 948 BGB.
11. Place of performance and jurisdiction
The place of performance for all deliveries or services is the place of dispatch. The Court of Jurisdiction of both parties is Wiesbaden. These Conditions are subject to the law of the Federal Republic of Germany.