high pressure cleaners for industry and trade - terms and conditions - von Oertzen GmbH

General Terms and Conditions

I. Applicability

We shall deliver and supply exclusively subject to the following terms and conditions, regardless of whether in individual circumstances it comprises a sales, service or work and delivery contract or another contractual relationship. We do not accept the general terms and conditions of our customers even if we do not expressly object to them.

II. Offer and Order

Offer documents like drawings, illustrations, weight and other measurements etc., even in brochures and price lists, are only approximate values, unless we explicitly state them to be binding. All agreements shall apply only if they are written down, unless the contractual partner proves that it was refrained from in the concrete case or we made an agreed delivery.

III. Prices and Payment

Our prices shall apply exclusively ex factory in 22949 Ammersbek. The prices do not include costs for packaging, freight, loading and unloading, transport, insurance, assembly, installation and start-up. These are to be paid by the contractual partner. The value-added tax is not included in any of the prices that we list. This will be added to the invoice at the tax rate legally applicable on the day of delivery. Unless otherwise agreed upon, the prices valid on the day of delivery will be invoiced. If we have accepted cheques or bills of exchange, the acceptance is as conditional payment subject to the usual reservations. Discount and collection charges are to be paid by our contractual partner. In the case of non-clearance of cheques, suspension of payment (also of partial payments) as well as the opening of insolvency proceedings involving the assets of our contractual partner, all our receivables will be due immediately – even in the case of a deferment. If our contractual partner does not pay on the due date or defaults on payment, we shall be entitled to demand interest in the amount of 5 % p. a. for consumers und 8 % p. a. for companies above the base interest rate in effect at the time. Further claims on our part thereby shall remain unaffected. Our contractual partner may only offset those claims that are undisputed or determined to be legally binding.

IV. Title Retention

We shall retain title to the goods delivered until receipt of all payments from the delivery contract (sales and/or work contract etc.) In the event of delivery subject to retention of title, our contractual partner is obligated to insure the goods delivered against theft, breakage, fire, water and other damages. Our contractual partner shall be entitled to sell the goods subject to retention of title only against payment in the regular course of business or otherwise only subject to the retention of property in our favour, but is not entitled to take any other actions, especially not to pawn them or use them as security. In the event of seizures or confiscations or other actions by a third party, our contractual partner must inform us immediately. Our contractual partner hereby assigns to us all claims arising from the resale of the goods subject to retention of title and is obligated to provide us on demand the information necessary for the collection of the assigned claims and to hand over the necessary documents. Until further notice, our contractual partner shall be authorised to collect the assigned claim deriving from the resale. In the event our contractual partner consolidates the goods delivered subject to retention of title with real estate or moveable property, he thus transfers to us the claims entitled to him due to this consolidation, including all ancillary rights. This transfer shall be restricted to the amount of the portion of the respective claims that corresponds to the invoiced value of the goods subject to retention of title plus a surcharge of 10 % of this invoiced value. In the case of the collection of a claim assigned to us, our contractual partner shall act as our trustee and is therefore obligated to convey to us immediately the amount collected for us. In the event of conduct of the contractual partner in breach of contract, especially in the case of delay of payment, we shall be entitled to reclaim the goods subject to retention of title after notice has been given, and our contractual partner is obligated to surrender the goods subject to retention of title. The exercise of our retention of title as well as the seizure by us of the goods subject to retention of title shall not be considered as a withdrawal from the contract. If our contractual partner defaults in payment or fails to fulfil his obligations deriving from this retention of title, we may after a reasonable period of time sell the goods privately at the best possible price and credit the proceeds against the sale price or seek compensation at the market or purchase value less reasonable processing fees. This recall shall only apply as a withdrawal from the contract in the case of partial payments by a consumer.

V. Delivery and Delivery Time

Delivery periods and dates are only approximate and shall be binding on us only in the case of written confirmation of the date. Compliance with the delivery period agreed upon is subject to the correct and timely delivery and provided that our contractual partner has furnished us with an agreed upon advance payment as stipulated in the contract. The delivery deadline shall be considered met when the delivery item has left our facility or the appropriate branch office before its expiration or when the item has been reported as being ready to be dispatched. In the event of service delays caused by impediments and breakdowns beyond our control and unforeseen when the contract was concluded that have a significant impact on the manufacture or delivery of the contractual object, the delivery time shall be extended for length of time required for their correction. This also shall be applicable when such circumstances occur at our suppliers and we are not guilty of any failure to take over or take precautions. If execution of the contract becomes completely or partially unreasonable for either party, it may withdraw from the contract. If there is a delay in delivery and a loss arises for our contractual partner due to the delay, then he shall be entitled only to demand flat rate compensation for the delay. For each full week of delay, this will amount to 0.5 %, but all told not more than 5 % of the value of that part of the total delivery that as a result of the delay cannot be used in a timely manner or under the terms of the contract. If we are delayed in our delivery and our contractual partner grants us – subject to legal exceptions – a reasonable extension of our delivery deadline that is not adhered to, then he shall be entitled as a matter of principle only to withdraw from the contract in accordance with statutory regulations. Further claims resulting from delay in delivery shall be determined exclusively according to section VIII of these terms and conditions.

VI. Delivery/Transfer of Risk/Shipping/Acceptance

1. Upon transfer of the contractual object to a carrier or agents performing the transport, at the latest however upon departure from the sales outlet, warehouse or – in the case of drop shipments – delivery plant, the risk shall be transferred to the contractual partner. If shipment or receipt of the contractual object is delayed for reasons beyond our control, the risk shall be transferred to the contractual partner upon receipt of notification of readiness to deliver or the like. Both of these provisions apply if we have taken over other services, e.g. shipping costs or delivery and installation. Acceptance, where required, is to be carried out without delay, alternatively following our notification of readiness to accept delivery. Our contractual partner must not refuse acceptance if a minor defect is found. If the shipment or acceptance is delayed or does not take place as a result of circumstances that are not attributed to us, the risk shall transfer to the purchaser from the date of notification of readiness for shipment or acceptance.

2. Our contractual partner is to accept delivered objects, even if they have been damaged in transit or are defective, without limiting his rights associated with transit insurance or the warranty. Our contractual partner is obligated upon acceptance of the delivered goods to unpack them immediately in the presence of the representative of the transport company and in the event of possible damages to have the type and extent of the damage confirmed by the representative of the transport company.

VII. Warranty/Liability for Defects in Material

We shall reserve the right to make modifications in construction or design that do not compromise either the efficiency or the value of the goods. Such modifications do not represent any error or defect. We shall grant a warranty for material defects of our deliveries and services to the exclusion of further claims – subject to section VIII of these terms and conditions – as follows:

1. We shall grant no warranty in the case of the sale of used items – beyond the purchase of consumer goods – unless in particular cases a warranty has been expressly agreed upon in writing. In the case of the sale of used items that are part of consumer goods, we shall warrant that the purchased objects are free from defects for the period of one year from delivery to the buyer.

2. Otherwise, we shall grant a warranty for new parts and as part of other services with regard to freedom from defects in accordance to the current state of technology, subject to the provisions set out below:

2.1. If the goods turn out to be defective prior to the transfer of risk, we are entitled at our discretion to repair or replace the goods or to repair or replace the parts that prove to be defective. Companies must make a written claim for apparent or hidden defects within 5 days after receiving the goods or from discovering the defect. If a commercial transaction is part of the contract, then sections 377, 381 II of the HGB (German Commercial Code) shall apply.

2.2. Our contract partner shall provide us the necessary time and opportunity to perform any and all repairs and replacements that we deem necessary; otherwise we shall be released from any liability for any resulting consequences. Only in urgent cases that endanger operational safety or to avoid disproportionally greater damages, in which case we are to be notified immediately, shall our contractual partner have the right to remedy the defect himself or by a third party and to demand from us reimbursement of the necessary expenditures.

2.3. Of the costs resulting from the repair or replacement delivery – provided that the complaint proves to be justified – we shall bear the costs of the replacement parts excluding shipping.

2.4. If the repair or replacement delivery fails repeatedly, our contractual partner may withdraw from the contract or reduce the sale price.

In the case of a replacement delivery or a withdrawal from the contract, we reserve the right to assert a reasonable compensation for use. Section VIII of these terms and conditions shall apply exclusively to claims of compensation for damages. More extensive claims of our contractual partner shall be excluded. If there is only a minor defect, our contractual partner shall only have the right to reduce the contractual price. The right to reduce the contractual price shall otherwise be excluded.

No warranty shall be accepted in the following cases in particular:

Inappropriate or improper use, faulty assembly and/or initial operation by our contractual partner or a third party, natural wear and tear, incorrect or negligent handling, improper maintenance, inappropriate operating materials, faulty workmanship, unsuitable foundation soil, chemical, electrochemical or electrical impacts – provided that we are not responsible for such conditions.

2.5. If our contractual partner or a third party makes improper repairs, there shall be no liability on our part for any consequences arising therefrom. The same shall apply in the event that modifications to the object were undertaken without our prior consent.

2.6. As long as we are not provided with the opportunity to verify the existence of a defect, especially if the defective goods are not made availabe to us upon request, defect and warranty claims cannot be raised against us.

2.7. We shall assume no warranty for hoses or rubber and plastic parts.

2.8. We shall offer a warranty for business persons for the period of one year from date of delivery according to the provisions mentioned above in section VII numbers 1 to 2.7.

2.9. If the business person uses the goods delivered by us in a multi-shift operation, reduced time limits will apply as follows with regard to the warranty for new parts and with respect to other services:

In a two-shift operation, the warranty period set forth in 2.8. will be reduced to 1/2 year from date of delivery, and in a three-shift operation to 1/3 year from date of delivery. Section XI.2 also applies to this provision.

2.10. Public statements of our contractual partner about our products that justify claims of the consumer and, as the case may be, also claims from business persons, shall release us from our obligation if the statements deviate from our information and are not authorised by us.

VIII. Liability and Extent of Liability

1. Claims for damages by our contractual partner shall be excluded – no matter what the legal reason is. This shall not apply to cases where liability is mandatory, e.g., under the Product Liability Act or in cases of wilful intent, gross negligence, bodily injury or breach of significant contractual obligations. Compensation for damages for breach of significant contractual obligations however shall be limited to typical damage foreseeable at the time the contract was signed, as long as there is no evidence of wilful intent or gross negligence or liability for bodily injury.

2. We shall assume no liability for damages that occur for the following reasons:

• inappropriate or improper use or use for purposes other than those intended,
• improper installation, faulty assembly, improper repair, initial operation and/or improper operation by our contractual partner or a third party,
• unauthorised modification or repair work,
• natural wear and tear,
• excessive use,
• handling not in accordance with the instruction manual
• incorrect or negligent handling,
• inappropriate operating materials,
• use of chemicals, accessories, spare parts or the like that have not been expressly authorised or delivered by us; harmful industrial wastewater; improper or faulty water, electricity or fuel connection.

3. Furthermore, there shall be no entitlement for claims against us, especially no compensation for damages or recourse claims in the event of disregarding the tips in the operating or assembly instructions and misusing the delivered goods. Likewise, there shall be no entitlement to claims for compensation for damages or recourse claims in the event of damage that occurred during transport after risk was transferred to the purchaser.

4. The above limits of liability shall also apply to damages that did not arise from the delivered object itself. We shall be liable for such damages – for whatever legal reasons – only in the case of

• wilful intent,
• gross negligence of the owner/company bodies or executive,
• culpable injury to life, body, health
• defects that were fraudulently concealed or whose absence had been guaranteed,
• defects of the delivery item to the extent that there is liability for personal injury or damage to privately used items under the Product Liability Act.

5. In the case of culpable breach of significant contractual obligations, we shall also be liable in the event of gross negligence of a non-executive employee and minor negligence; in this case the compensation for damages shall be limited with respect to business persons to typical damage reasonably foreseeable at the time the contract was signed.

In cases of minor breach of obligation and in the event of breach of non-essential contractual obligations, liability for minor negligence is excluded in each case.

6. Any other claims shall be excluded. No change of the burden of proof to the disadvantage of our contract partner shall be connected with the provisions under section VIII of these terms and conditions.

IX. Statute of Limitations

The statutory limitation times shall apply to intentional or fraudulent behavior as well as claims arising from the Product Liability Law. All legal and contractual claims of our contractual partner, provided that he is a business person, shall lapse with us – for whatever legal reasons – one year from delivery date. The warranty or statutory period shall not recommence with remedying a defect or making a new delivery.

X. Overhaul/Repairs

For overhauls that we perform, our general terms and conditions for repair that are posted in our business premises shall apply in addition to this term and condition. Overhauls are made according to internal prices that are recorded in our business premises. Our mechanics are not authorised to make price arrangements. Such price arrangements are only binding if we confirm them in writing.

XI. General Provisions

1. The laws of the Federal Republic of Germany shall also apply in relation to foreign partners to the exclusion of international commercial law. The place of fulfillment for delivery and payment is Ammersbek for business transactions with business persons. The place of jurisdiction for all disputes shall be Hamburg in the case of business persons. We shall also be entitled to file suit at the headquarters of our contractual partner.

2. If individual provisions of these general terms and conditions are or become invalid, that shall not affect the legal validity of the remaining provisions. Contractual partners shall be obligated to replace the invalid provision with a provision that most closely approximates the the economic result of the invalid provision.