1. Range of Validity
The deliveries, production and quotations of the ELTEN GmbH are made exclusively according to these Terms of Payment and Delivery. They also apply with regard to all future business, even so when they are not specifically agreed upon.
2. Order
(1) The order has been placed if not cancelled in writing within 10 days of the seller. Decisive for the setting of the deadline is the dispatch date of the rejectioning letter.
(2) Offers published in prospect material, advertisements, price-lists etc. are – also regarding price indications – free of engagement and not binding.
(3) Secondary agreements must be confirmed in writing in order to become valid.
3. Delivery
(1) If not especially agreed upon, delivery is made on condition “ex works” for account and risk of the buyer in the way which is most favourable for the seller (seafreight, airfreight or forwarding agent).
(2) Additional costs for special requests from the buyer (e.g. express, courier) will have to be borne by the buyer himself.
4. Packing
Post and cardboard packing as well as crate- and linen cloth packing will not be charged extra.
5. Title of Property
(1) The goods delivered remain property of the seller until payment has been made. However, the buyer can, within the range of an orderly business, resell or process the purchased goods.
(2) Each mortgage or security conveyance of these goods in favour of third parties is, without prior consent of the seller, inadmissible. The buyer is obliged to inform the seller immediately about each kind of distress concerning goods belonging to the seller. To strike balances and perception of balances do not regard the title of property.
(3) Claims which result from the resale, respective delivery to third parties – as well as from a transport insurance contract in favour of the buyer, will be assigned in advance to the seller in order to secure his claims resulting from the contract without the need of a special document.
The buyer agrees to this pre-assignment. The seller accepts this pre-assignment.
6. Terms of Delivery
(1) Force majeure or official actions entitle the seller as well as the buyer to extend the agreed delivery time – or, due to lack of agreement – to postpone the immediate delivery for the time of duration, however, at the utmost for a period of 6 weeks, under exclusion of any guarantee claims. After expiration of this time limit each party is entitled to withdraw from the contract after having set an appropriate prolongation under the threat of a rejection.
(2) The same applies in case of labour disputes (strikes and lock-outs).
(3) Should be buyer ask for indemnification due to non-fulfilment, he must make a subsequent delivery within 35 days threatening the seller that he will decline fulfilment after expiration of this time limit. The subsequent delivery date starts at the earliest on receipt of the letter at the buyer’s premises and not earlier than after expiration of the delivery date. This procedure also applies if the buyer demands fulfilment of the contract.
(4) Transactions for delivery at a fixed date are not carried-out.
7. Guarantees and Liabilities
(1)Should the article delivered be defective or miss the promised characteristics, or the article deteriorates within the guarantee period due to manufacturing or material defaults, the seller delivers subsequently at a later date, according to this choice, excluding other guarantee claims of the buyer or grants a price reduction.
(2) The guarantee claim comprises 2 years and starts with the delivery of the goods. Exempted from the warranty are damages caused by normal abrasion, faulty use and lack of care.
(3) If the improvement or replacement delivery fails, the buyer can, under exclusion of other guarantee claims, insist on their correct repetition within an appropriate fixing of a date. Should this fail, legal guarantee claims will find their application.
(4) The blame on visible defects has to be submitted in written form. It should be made and proved within 10 days after receipt of goods, in case of delivery before the agreed delivery date, within 10 days after the agreed delivery date.
(5) In case of hidden defects, legal regulations will apply.
(6) The goods complained or can only be returned free of charge with the seller’s approval, unless the seller has not consented to the claim within 10 days.
(7) In case of complaints of single pairs the simultaneous return of the goods together with the complaint is admissible. Such complaints have to be settled on part of the seller within 15 days, starting on the provable date of dispatch, otherwise the buyer is entitled to charge the equivalent value. Dispatch from both parties involved has to be made by registered mail. Should the buyer dispatch the goods not by registered mail, the complaint has to be dealt with from the seller within 10 days after receipt of the returned material. In this case the dispatch of the goods from the seller can also be made in non-registered form.
(8) Complaints for compensation resulting from the impossibility of non-fulfilment, positive contract infringement due to fault on contract agreement of resulting from forbidden action, cannot be made towards the seller. This also applies with regard to his assistance if the damage has not been caused on purpose of carelessly. The same applies for compensation complaints resulting from property assurance which shall protect the seller against the risk of successive damages.
(9) Only in the case of an agreement of a corresponding risk the company van Elten GmbH does not take over the replacement of successive damages or indirect damages which are beyond the product sold.
8. Invoicing
(1) Invoices are issued on the day of dispatch of the goods, respectively on taking over of the goods. In the case of early delivery, the agreed delivery date will be regarded as date of issue. Valuations modifying the validity are inadmissible.
(2) An open credit may not exceed 30 days after date of invoice. On exceeding the credit period or in case in non-adherence to the payment date of the agreed pre-payment, 3 % interest added upon the respective discount - rate of the Deutsche Bundesbank have to be paid at least, however, 6 percent at the most. The seller has to prove a higher loss of interest, the buyer the lower loss of interest.
(3) Invoices from 1. to 10., 11 to 20 and 21 until the last day of the month can be added up to the respective last day of this period of time.
(4) The contracting parties may agree upon one or more of the conditions listed.
9. Failure to pay, Deterioration of property
If the buyer is more that 14 days behind the agreed payment, or a considerable deterioration with regard to his property occurs, the seller is entitled to withdraw from that part of the contract which has not been fulfilled yet, or, with regard to future deliveries, insist on cash payment or guarantee of the goods without the necessity of a (previous) prolongation of time.
10. Place of Jurisdiction, Venue
Place of jurisdiction for all performances laid down in the delivery contract is the town where the seller’s factory is located. In the event of litigation, the courts in Kleve shall have exclusive jurisdiction rights.