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Standard Conditions of Sales and Delivery

1.The following Conditions of Sales apply to all orders unless expressly agreed otherwise in writing. Any conditions of the Buyer which conflict with these Conditions shall only be applicable if recognized by the Seller in writing

2. Agreements between the Buyer and the Seller or his agents shall not be binding on the Seller until they have been confirmed in writing by the Seller.

3. All prices are ex works and do not include costs of packing, carriage, insurance, installation and commissioning.

4. The seller retains the title to and the copyright of plans, estimates of costs, drawings and other technical documents. They may only be made accessible to third parties with the written consent of the Seller.

5. Payments shall be made as follows: 1/3 upon placement of order and the remainder upon readiness for dispatch.

Withholding of payments or setting off against any counterclaims of the Buyer is not permitted.

If the Buyer does not accept delivery on the contractually agreed date the payments owed according to the agreed due dates shall not be affected thereby. The Seller can charge the Buyer default interest on overdue payments at 2% above the current bank base rate with effect from the due date.

The Seller is not obliged to make any further deliveries in connection with any current contract until due invoice amounts, including default interest, have been paid. If the Buyer defaults on a due payment, or if the Buyer's financial situation deteriorates significantly, the Seller can demand payment in cash prior to delivery of the goods for all still outstanding deliveries, in which case any payment period granted shall cease to apply.

6. The delivery period commences after written acknowledgement of order, after receipt of the agreed advance payment and after clarification of all technical questions whose clarification was reserved for later negotiation when the contract was concluded. The delivery period is met if the consignment is ready for dispatch within the period and the Buyer has been informed to this effect. Part deliveries are permitted. The delivery period applies barring unforeseen circumstances which are outside the control of the supplier or his subcontractor, in particular in case of force majeure, stoppages, strikes or the like, if these events significantly affect fulfilment of the contract in due time the delivery periods shall be extended appropriately.

7. In all cases goods are dispatched for the account of the Buyer and the Buyer's risk. No liability is accepted for damage or loss in transit. Unless the Buyer has given special instructions for dispatch the Seller shall dispatch the goods by the best means according to the Seller's judgement. Unless the Buyer instructs otherwise with regard to insurance against damage or loss in transit, the Seller is free to effect such insurance at the Buyer's expense. However, the Seller is under no obligation to effect insurance.

8. If the Buyer fails to accept delivery of a part of the goods to be supplied the Seller is entitled to demand compensation up to the contract value of the relevant part of the goods supplied.

9. Installation shall take place on the basis of the General Conditions of Installation and Commissioning which shall be agreed separately.

10. Provided that the Buyer has not performed any unauthorized modifications or repairs, the Seller accepts liability as defined below for defects in the delivered goods, including failure to meet the warranted quality, to the exclusion of any other claims.

There are no other express or implied warranties. Any statement about the production and/or commercial efficiency of a machine shall only be regarded as an estimate and not as a warranty or binding statement. No liability is accepted for materials or accessories purchased at the instigation of the Buyer.

If, within 12 months from the invoice date, not including the normal duration of transportation, installation and/or commissioning, any parts are proven unusable or significantly restricted in their usability on account of a circumstance occurring before the transfer of risk, in particular defective construction, inferior material or faulty manufacture, the Seller shall either repair such parts or deliver new parts free of charge. The choice between repair and replacement shall be the Seller's.

Liability shall also only apply to defects which occur under the operating conditions agreed in the contract and with proper use.

No liability is accepted for parts supplied which are subject to premature wear on account of the nature of the materials of which they are made, particularly moving parts, or the type of use.

The Seller has no liability for defects which arise from the design prescribed by the Buyer, in particular no liability attaches to the Seller for defects resulting from the following causes: poor maintenance, use of non-original Thies spare parts, changes without the written consent of the Seller, badly performed repairs by the Buyer or normal wear and tear.
The Seller is only liable for material defects in accordance with the Conditions of Delivery of his subcontractors. Only the subcontractor's liability for defects shall apply to any parts which the Seller is not liable to replace.

In case of multiple shift operation the duration of liability for defects is reduced to 8 months. The period of liability for spare parts or exchanged parts delivered at a later date is restricted to 6 months. If defects are discovered these must be reported to the Seller without delay. The Buyer must give the Seller every opportunity to inspect and confirm the defects. The Buyer may only carry out the necessary repairs at the Seller's expense with the Seller's written declaration of consent. However, this is conditional upon this work being carried out with the necessary care.

Any damage which occurs through negligence or inexpert treatment on the part of the Buyer, excessive conditions of use or natural wear and tear are excluded from the warranty. The Seller shall not compensate the Buyer for any damage to goods which are not subject of the contract nor for loss earnings or losses of production. The Buyer is responsible for ensuring that the machine or equipment is properly connected to the energy supply network at his premises in accordance with the international rules of engineering and in compliance with the local authority regulations and statutory requirements and for monitoring the machine or equipment from the day of commissioning onwards. The Seller has no liability for any damage resulting from a failure to observe these rules and regulations. All warranty claims by the Buyer become void 6 months after the warranty claim is asserted if the latter is not recognized by the Seller or the Buyer does not take his claim to court before the 6 months have elapsed.

11. Retention of title: The goods delivered remain the property of the Seller, even after the risk has passed to the Buyer, until such time as the Seller's claims, including all subsidiary claims such as cost of packaging, freight, transportation and, if applicable, default interest, have been satisfied in full. Up to then the Buyer must insure the goods supplied against damage by fire and water at his own expenses and in favour of the Seller and must provide evidence of this insurance cover to the Seller upon request. The Buyer must also grant the Seller and his agents access to the site of installation. The Buyer must neither sell the goods nor charge them as security. If they are seized he must inform the Seller immediately.
If the Buyer defaults on payment the Seller is entitled either to repossess the goods supplied without forfeiting his claims until these claims have been satisfied or to withdraw from the contract. In the event of the goods supplied being removed all costs, including costs arising from reinstallation, shall be for the Buyer's account. If the Buyer withdraws from the contract he must compensate the Seller for the use of the goods supplied and also for any reduction in value whether caused by the Buyer or not. The latter shall be at least 10% of the invoiced amount per month. The Seller is entitled to distrain the goods supplied: such distraint shall not constitute a relinquishment of the retention of title. If the distrained goods are realized, the Buyer loses the right to fulfilment of the contract.

12. The place of fulfilment and legal venue for all disputes arising from the contract shall be the Seller's main place of residence.

13. The Buyer and Seller may only transfer their contract rights to third parties by mutual consent between the Buyer and Seller.

 

 

Coesfeld, February 1994

 

 

 

 

 




 

 

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