1. Scope of application
The provisions of these general conditions apply as standard contractual conditions which are used in a contract with a merchant in the normal course of business. By accepting an offer or an order confirmation or by sending an order form, the customer (hereinafter called the Buyer) confirms his acceptance of these General Conditions of Sale and Delivery. Any contrary terms and conditions defined by the Buyer shall not be binding on Axsol GmbH (hereinafter collectively referred to as Seller), even if no specific objection is raised by the Seller. The Seller’s services, deliveries and offers are provided exclusively on the basis of the Seller’s General Terms and Conditions. These also apply to all future business relations, even if they are not explicitly agreed on again. These Terms and Conditions are deemed accepted at the latest upon receipt of the product or service.
Any document other than these General Conditions, such as catalogues, brochures, advertisements and other notes, shall only be informative and indicative and shall not constitute a contractual obligation. The text and image related to the product and other product specific information have been carefully prepared, however, no responsibility is taken for the accuracy of such information in all documents and digital media of the Seller. Any offer, order confirmation, acceptance of order for sale of any of Seller’s products is conditional upon the terms contained herein. Any conditional or different condition proposed by the Buyer is disputed and shall not bind the Seller, unless expressly accepted in writing by the Seller. These conditions govern any individual sales contract between the Seller and the Buyer. Any omission of typographical, clerical or other errors in any commercial documentation, quotation, price list, order confirmation, invoice or other information document issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2. Orders and specifications
(1) The act of sale is effective after acceptance by the Seller of the order presented by the Buyer.
Offers and quotations do not constitute a contract and have no contractual value.
No order submitted by Buyer shall be deemed accepted by Seller unless confirmed in writing by Seller or Seller’s representative.
Verbal agreements or understandings with the Seller’s employees are only binding if confirmed in writing by the Seller.
In order to be legally effective, declarations of acceptance and all orders require a written confirmation from the Seller (order confirmation) or a written confirmation by e-mail and / or fax are sufficient.
All order acceptances are based exclusively on these General Terms and Conditions of Sale and Delivery. Supplements, modifications and verbal agreements must be confirmed in writing by the Seller.
The revocation of an order already sent by the Buyer and confirmed by the Seller is inadmissible. Changes to the order conditions (quantity, reference or technical specifications) are only admissible within 24 hours of confirmation of the order by the Seller.
(2) The quantity, quality and description of the specifications for the goods shall be those indicated in the Seller’s offer (if the Buyer accepts an order in writing) or the Buyer’s order (if it is accepted in writing by the Seller via the order confirmation).
Any specifications, commercial documentation, quotations, etc. must be strictly confidential and must not be made available to third parties. The Buyer shall be liable to the Seller for ensuring the accuracy of the terms of any order submitted by Buyer, and for providing Seller with all necessary information relating to the Goods within a time sufficient to enable Seller to perform the contract in accordance with its terms. If the Goods are to be manufactured or any process is applied to the Goods by the Seller in accordance with the specifications submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damage, costs and expenses awarded or incurred by the Seller. The Seller in connection with or paid or agreed to be paid by Seller in settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual rights of any other person resulting from Seller’s use of Buyer’s specifications. The Seller reserves the right to make changes to Product specifications that may be necessary to comply with applicable legal requirements, without being liable for such changes.
(3) In addition, where the Goods are to be supplied in accordance with the Seller’s specifications, the Seller reserves the right to make changes which do not materially affect the quality or performance of the Goods.
(4) The information contained in the sales documents prepared by the Seller is only indicative and is not legally binding.
(5) Any analysis or study undertaken or delivered on request of the Buyer must be verified by him before use. The Seller disclaims all liability and assumes no contractual, tort or other liability to the Buyer or other third parties with respect to the contents of these documents.
(6) The revocation of an order already sent by the Buyer and confirmed by the Seller will result in punitive damages of 10% of the amount of the order.
3. Commodity prices
(1) Unless otherwise specified, all prices are quoted by the Seller on an ex works basis (Incoterms 2010), and when the Seller agrees at the Buyer’s request to deliver the goods elsewhere than to the Seller’s premises, the Buyer is obliged to pay the Seller’s costs for transport, packaging and insurance.
(2) Unless otherwise stated, the Seller shall be bound to the prices indicated in his offers for a period of 30 days from the date of the offer.
(3) The prices stated in the order confirmation of the Seller plus the statutory value added tax at the time of delivery or service are binding. Other deliveries and services are calculated and paid separately. Unless otherwise agreed, the prices indicated in the order confirmation do not include postage and packaging costs.
(4) If at least three (3) months have elapsed, for whatever reason, between the conclusion of the contract and the delivery of the product, the Seller may increase the purchase price by an amount corresponding to:
- the increase in the life index price and
- a modification of a tariff agreement and
- higher production costs and
- currency regulation and
- a change in functions and
- a significant increase in material costs
- and other manufacturing costs or any change in delivery dates.
(5) The price excludes any applicable value added tax, which the Buyer is also obliged to pay to the Seller.
4. Payment terms
(1) The Buyer must pay the price of the goods within the period specified by the Seller from the date of the Seller’s invoice. Commercial discounts require the prior written approval of the Seller.
(2) Payment shall be made only by interbank payment transaction; no cheque or bill of exchange shall be considered as fulfilment of the payment obligation. It may be agreed between the parties that the Buyer must provide a letter of credit issued by a bank acceptable to the Seller. In this particular case, it is assumed that any letter of credit will be issued in accordance with the Uniform Customs and Practice for Documentary Credits, 2007 Revision, ICC Publication No. 600. If the Buyer fails to make payment on the due date, to the prejudice of any other right or remedy available to the Seller, the Seller shall have the right, at its discretion, to:
- cancel the contract or suspend any subsequent delivery to the Buyer;
- or charge the Buyer’s interest on the amount outstanding from the due date, at the rate of 7 per cent per annum above the European Central Bank’s reference rate, until payment in full.
The Buyer shall be entitled to prove that the delay in payment caused little or no damage.
(3) All orders are accepted under the provision that the Buyer is able to pay the full amount of the purchase price. If this precondition is no longer met, which implies that adverse information on the Buyer’s economic situation exists or that payments are not made within the agreed payment period, the Seller may require immediate payment in cash before delivery of the goods. the agreed payment date. In case of significant deterioration of the Buyer’s financial situation after conclusion of the contract or in case of delay in payment, the Seller has the right to terminate the contract and demand immediate payment of all claims, both for payment and not yet for payment. If the Seller makes use of the right to withdraw from the contract, the Buyer shall reimburse the Seller for loss of profits or expenses incurred in connection with the order placed, in particular in connection with the hours worked. Payments must be made exclusively to the Seller.
(4) Set-off rights are not permitted.
(1) The periods and deadlines indicated by the Seller are not binding, unless otherwise agreed in writing. The Seller is not responsible for delivery delays due to Force Majeure or events that make delivery considerably more difficult or impossible for the Seller, even if binding delivery times and delivery deadlines have been agreed. These events allow the Seller to delay delivery or service for the duration of the impediment, or to terminate the contract in whole or in part with respect to the part that has not been fulfilled. The Seller is always entitled to perform partial services or deliveries.
(2) The beginning of the delivery period indicated by the Seller is subject to clarification of all technical questions. Compliance with the Seller’s obligation to deliver also presupposes timely and correct performance of the Buyer’s obligations. The right to the exception of non-performance of the contract remains reserved.
(3) Delivery of the goods shall be made by the Buyer collecting the goods at the Seller’s premises at any time after the Seller has informed the Buyer that the goods are ready for collection or, if another place of delivery is agreed by the Seller, by the Seller delivering the goods at that place. If the Buyer is in default of acceptance of the goods or culpably breaches other obligations of cooperation, the Seller shall be entitled to demand reimbursement of the costs incurred by the Seller to this extent, including all additional expenses and other damages. The Seller’s right to further claims remains reserved.
(4) Where delivery of the goods is to be made by the Seller in bulk, the Seller reserves the right to deliver up to 3% more or 3% less than the quantity ordered without any price adjustment, and the quantity so delivered shall be deemed to be within the quantity ordered.
(5) If a fixed and binding delivery period is stipulated in the contract, and the Seller fails to deliver (in accordance with (3) of this Article) within the period or any extension granted, the Buyer, provided that the delay in delivery is based on a breach of contract by malice or gross negligence of the Seller and on delivery to the Seller within a reasonable period in writing, to claim a reduction of 0.1% of the delivery value for each full week of arrears, but not more than 3% of the delivery value, unless it can reasonably be concluded from the circumstances of the particular case that the Buyer has suffered no loss.
(6) Liability for any loss of profit or other indirect loss, including loss of income that can normally be obtained with the product(s) sold, is excluded.
(7) As far as possible, the quantity ordered by the Buyer must be provided. Any difference in quantity resulting from the delivery note or invoice must be notified in writing to the Seller, but not later than five (5) working days after receipt of the goods.
(8) If the Buyer fails to accept delivery on the due date, he must nevertheless make payment as if delivery of the goods had been accepted. The Seller must organise the storage of the goods at the Buyer’s risk and expense. If required by the Buyer, the Seller will insure the goods at the Buyer’s expense.
6. Transfer of risk
(1) In the case of Goods to be delivered to the Seller (ex works, Incoterms 2010), risk shall pass to the Buyer at the time the Seller notifies the Buyer that the Goods are available for collection.
(2) In the event of shipment being impossible due to no fault on the part of the Seller, the risk shall pass to the Buyer upon notification of readiness for shipment.
(3) The risk of damage or loss of the Goods shall pass to the Buyer as soon as the Goods have been delivered to the person performing the carriage, or as soon as the Goods have left the Seller’s warehouse. This also applies if the Seller bears the transport costs.
(4) The Buyer must check the incoming goods immediately after receipt. Claims of any kind will be excluded if they are not made within 14 days after receipt of goods.
(5) Complaints or claims relating to hidden defects which are difficult to discover during the usual examination must be addressed directly to the manufacturer.
(6) Defects in part of the delivery do not entitle the purchaser to make claims in respect of all goods in connection with a delivery.
7. Retention of title
(1) Notwithstanding delivery and transfer of risk in the goods, or any other provision of these conditions, ownership in the goods shall not pass to the Buyer until the Seller has received full payment of the price of the goods and all other goods agreed to be sold by the Seller to the Buyer for whom payment is then due.
(2) If the Buyer acts in breach of contract, in particular in the event of default in payment, the Seller shall have absolute authority to take back, sell or otherwise deal with or dispose of all or part of the goods in which title remains vested in the Seller;
(3) Until ownership of the goods passes to the Buyer (transfer of ownership), the Buyer must hold the goods as the Seller’s fiduciary agent, and must keep the goods properly stored, protected and insured at his own expense.
(4) Until the transfer of ownership, the Buyer shall have the right to resell or use the Goods in the ordinary course of business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, including the proceeds of insurance, and such proceeds shall be separate from the sums or property of the Buyer and third parties.
(5) If the Goods are processed or remodelled by the Buyer and if the processing is carried out with Goods in which the Seller has no ownership, the Seller becomes co-owner of the new object in the ratio of the value of the purchase object (final invoice amount excluding VAT). If the mixing is done in such a way that the Buyer’s item is to be considered the main item, it is deemed agreed that the Buyer assigns the co-title to the Seller on a pro rata basis.
(6) If third parties take steps to undertake otherwise to dispose of the Goods, the Buyer shall immediately inform the Seller in order to enable the Seller to apply for a court order in accordance with Section 771 of the German Civil Procedure Code. If the Buyer does not do so in due time, he will be held liable for the damage caused.
(7) The Seller shall, at the Buyer’s request, release any part of the security if the value of the security held in favour of the Seller exceeds the value of the secured claims. It is up to the decision of the Seller to release the parts of the security which suit him.
(1) General Provisions: Except for the Seller’s gross negligence and except for personal injury, Seller’s liability is limited, for all Buyer’s claims in total, to the value of the goods and services received by Buyer to the extent that it was paid by Buyer on the date of Buyer’s claim. The Buyer indemnifies its insurers or third parties who have entered into separate contractual agreements with the Buyer against Seller or Seller’s insurers beyond the above limitations and exclusions.
(2) Liability for Errors in Buyer’s Documents: Seller shall not be liable for damages caused by errors of Buyer or third parties in the performance of the contract, nor for damages resulting from the use of technical documents, data or other information provided by Buyer containing errors not detected by Seller.
(3) Liability for indirect and/or consequential damages: In no event shall Seller be liable for indirect and/or indirect damages such as: business interruption, business interruption or any other consequential loss (including consequences and/or consequential damages for installation costs, transportation costs, handling costs, travel costs, etc.).
9. Warranties and exclusion clauses
(1) The Buyer examines the Goods in accordance with German law (§§ 377, 378 HGB) and thus checks each delivery in every respect.
(2) The Seller warrants that all items delivered under this contract are under the manufacturer’s warranty limited to 12 months from the date of the first invoice.
(3) The Seller shall not be liable for the suitability of the Goods for any particular purpose, unless otherwise agreed, to which the Buyer intends to put them.
(4) The above warranty is given by Seller subject to the following conditions: Seller shall not be liable for any defect in the goods resulting from any design or specifications provided by Buyer, Seller shall not be liable for the above warranty if the total price of the Goods has not been paid by Buyer on the due date for payment; The above warranty does not apply to parts, materials or equipment manufactured by or on behalf of Buyer, unless such warranty is given by Manufacturer to the Seller.
(5) This warranty does not cover defects or damage to the products due to improper installation or maintenance, misuse, neglect or any cause other than ordinary commercial application.
(6) Any claim by the Buyer based on a defect in the quality or condition of the Goods shall be notified to the Seller within two weeks from the date of delivery.
(7) The Buyer has the right to demand delivery of any replacement goods, or repair or reduction of the purchase price as stated in the terms of each individual sales contract. Liability for any loss of profit or other indirect loss, including liability for income that can ordinarily be realized with the product(s) sold, is excluded.
(8) If a valid claim against the Goods based on a defect in the quality or condition of the Goods is notified to the Seller in accordance with these Conditions, the Seller shall be entitled, at the Seller’s sole discretion: either to replace the Goods free of charge or to repair the Goods.
(9) The Seller is not the manufacturer of the products sold by him. The Seller therefore does not assume any type of rights arising from such warranties or guarantees granted by the manufacturer. The written warranties given by the Seller remain unaffected.
(10) Seller does not guarantee the performance of any system. The Seller gives no guarantee of performance. The Seller assumes no guarantee of performance or efficiency of any system or component delivered to the Buyer.
(1) Seller reserves the right to improve or modify any product without notice, provided that such improvement or modification does not affect the form and function of the product.
(2) This Agreement supersedes all other covenants and warranties relating to the subject matter hereof made orally or in writing by the parties prior to the date hereof and which shall become null and void as of the date of this Agreement. is signed.
(3) This Agreement may not be assigned or transferred by either party without the written consent of the other party.
(4) Each party is responsible for all legal, accounting or other costs and expenses incurred in the performance of its obligation hereunder.
(5) In case of conflict between the German, French and English versions of the General Terms and Conditions, the English version shall prevail.
11. Choice of law Place of jurisdiction
(1) This contract shall be governed by and interpreted in accordance with German law if a contract has been concluded between the purchaser and Axsol GmbH. In case of uncertainty as to the applicable law, German law shall prevail.
(2) Each party agrees to submit to the jurisdiction of the courts selected by the Seller.
(3) The Seller shall have the right to bring a claim before a court at the Buyer’s principal place of business or at its discretion before any other court having jurisdiction under national or international law.
In the event of any discrepancy between the different translations of the Terms and Conditions, the English version shall prevail.