General Terms and Conditions of Business (Terms and Conditions)
the expression "Conditions of Sale" is used below - YMC Europe GmbH, Information correct as of September 2013
1. Validity of the Conditions
(1) These conditions apply only to companies (Sectio n 14 of the German Civil Code (BGB). They also apply to all future transactions with the ordering party (customer). They also apply mutatis mutandis to service, work and work and delivery contracts.
(2) Our terms of sale apply exclusively. We do not recognise any conditions of the customer which conflict with or deviate from our conditions of sale, even in cases where we execute a contract unconditionally.
(3) All agreements made between us and the customer for the purpose of executing the respective contract are t o be set out in writing in the relevant agreement or in an amendment agreement. Any cancellation or amendment shall apply only to the respective agreement that has been concluded.
(4) Unless otherwise stated in these conditions of sale, the terms and definitio ns of INCOTERMS 2000 apply.
2. Conclusion of the Contract
(1) Our offers are submitted subject to confirmation. Similarly, technical descriptions and other details contained in offers, brochures and other information are initially provided without obligation.
(2) We retain the ownership rights and copyrights of illustrations, drawings, calculations and other documents. These may not be made available to third parties. Design drawings are not released.
(3) The order placed by the customer and confirmed by his/her signat ure shall be deemed to have been accepted by us if it is confirmed in writing, orally, by telephone or in text form, or if we do not reject acceptance within two weeks. This period shall be deemed to have been complied with if the dispatch date of the reje ction letter according to the postmark lies within this period
(4) Information within the meaning of paragraph 1 and that contained in public statements on our part, as well as that provided by other manufacturers and their assistants (§434 I 3 BGB) only form s part of the specification of services if this is explicitly referred to in the respective contract.
3. Prices and Terms of Payment
(1) Unless otherwise agreed, our prices are quoted net "ex works" or warehouse and including normal packaging. Additional expen ses, for example for the conclusion of insurances, shall be paid for by the customer. Insofar as we have accepted responsibility for the set - up, installation, assembly, commissioning or qualification measures - and unless otherwise agreed in writing - the customer shall pay not only the agreed remuneration, but all additional costs such as travel expenses, etc.
(2) If the costs incurred by us for the delivery change within three months of the submission of the offer or the order confirmation up to the time of t he delivery, e.g. as a result of the subsequent introduction of or an increase in the levies, taxes or other charges on the goods, in particular EU levies and anti - dumping or countervailing duties etc., as well as any changes to currency exchange rates, we are entitled to adjust the quoted or agreed price accordingly.
(3) Purchase price payments are to be effected within 30 days of receipt of the goods and invoice in cash or by bank transfer. These are deemed to have been effected from the date on which the amo unt is freely at our disposal. The deduction of any discount requires a separate written agreement. All taxes and duties etc. , which are collected in the recipient country , the customer has to pay.
(4) Other payment forms require a separate written agreement. All costs incurred by both parties as a result shall be borne by the customer.
(5) The customer has a right of offset or right of retention only in conjunction with undisputed or legally established claims.
4. Delivery and Obligation to Cooperate
(1) The scope of our delivery obligation is defined exclusively in the respective contract. We reserve the right to carry out design or other changes which are based on technical improvements or legal requirements, provided that the changes are not significant or otherwise considered unacceptable to the customer. The customer assumes full responsibility for the products to be supplied by him/her, such as drawings, models and samples.
(2) If the customer can be reasonably expected to accept partial deliveries, these can be execu ted and invoiced.
(3) The delivery period begins with the date of our written order confirmation. If not all details of order execution have been clarified up to this time, the delivery period shall be postponed until final clarification. Delivery periods are stated in all cases subject to the contractual cooperation of the buyer. Compliance with our delivery obligation requires the timely and proper fulfilment of the customer's obligations. Changes requested by the customer at a later time or the unpunctual s upply of the documents to be submitted by the customer (e.g. the necessary approvals and releases) require a corresponding extension of the delivery period. The delivery period shall be deemed to have been complied with if the delivery item is ready for sh ipment within the agreed period and we have informed the customer of this.
(4) Insofar as we do not receive supplies ourselves, although we have placed orders for identical goods with reliable suppliers, we shall be released from our obligation to perform and can withdraw from the contract.
(5) If after conclusion of the contract it is ascertained that the customer does not provide a sufficient guarantee for his/her solvency and our payment claim is threatened, we are entitled to refuse the delivery until the custo mer effects payment or has provided security for it. If payment or the provision of security is not effected within 12 days of an appropriate request to do so, we are entitled to withdraw from the contract.
(6) If the customer is in arrears with a release orde r, acceptance test or collection, or if a shipment or delivery is delayed for reasons for which the customer is responsible, we are entitled - without prejudice to any further claims - to demand a lump sum to cover the costs which is equal to the standard local storage costs, regardless of whether we store the goods on our own premises or those of a third party. The customer retains the right to prove that no or only a lower level of loss or damage has been incurred.
(7) In the case of unauthorised termination of the contract by the customer, we are entitled to claim 20% of the gross value of the contract without proof of the level of the actual loss or damage incurred as lump - sum compensation (damages instead of performance). The above shall also apply if the c ontract is not executed for reasons for which we are not responsible. The customer retains the right to prove that no or only a lower level of loss or damage has been incurred.
(8) Items which are excluded from the provisions contained in paragraph 7 above are goods which have been manufactured in accordance with the specific wishes of the customer. In this case, we reserve the right to assert further claims for damages.
(9) Insofar as we have also undertaken to install and commission the delivered products (equipm ent and plant in particular), the customer shall carry out all of the preparatory work required for this. He or she shall in particular make personnel available for his or her own systems for the duration of the installation and provide an appropriate ins tallation location in good time. All expenses, additional costs or damage resulting from non - compliance with this obligation shall be borne by the customer.
5. Delays to Delivery
(1) If the agreed delivery date cannot be complied with as a consequence of circu mstances affecting us or our suppliers for which we are not responsible or which cannot be controlled (e.g. natural disasters, war, riot, interventions by public authorities, a lack of energy, labour disputes, etc.), the date shall be extended appropriate ly. We shall inform the customer immediately of such cases. If the impeding circumstances are still continuing one month after expiry of the agreed delivery period, either party may withdraw from the contract. Further claims based on the delivery period be ing exceeded for reasons for which we are not responsible or which are not controllable are excluded.
(2) Insofar as the customer incurs loss or damage in the case of a delay in delivery, he or she shall be entitled to demand lump - sum compensation for each ful l week in the amount of 3% of the delivery value, but not more than 10% of the delivery value. The customer may also set us a reasonable period of grace, which must be at least 15 working days. After this period has expired without success, the customer is entitled to withdraw from the contract or demand damages instead of performance. The liability for damages is limited to 50% of the loss or damage occurred.
(3) Paragraph 2 shall not apply insofar as the delay is attributable to intent, gross negligence or a substantial breach of duty. It shall also not apply if a commercial transaction for delivery by a fixed
6. Place of Performance and Transfer of Risk
The place of performance is our place of business. Unless the order confirmation sta tes otherwise, delivery is agreed "ex works". This applies regardless of which party bears the freight costs, even if the delivery is executed in individual parts. If delivery is delayed due to circumstances for which the customer is responsible, the risk is transferred to the customer upon the submission of notice of readiness for dispatch. However, we are obliged to take out insurance requested by the customer for the customer's account. 7. Defects
(1) With regard to defects, the customer shall initially be subject to the legal investigation and objection responsibility pursuant to §377 of the German Commercial Code (HGB). Obvious defects must be notified in writing within 7 days. Otherwise, the entire delivery is considered to have been approved. The investi gation obligation also includes operating and assembly instructions.
(2) The customer cannot derive any further rights from defects of quality which do not impair - or only impair to an insignificant extent - the value and suitability of the goods with respect to their use which is apparent to us.
(3) If the goods display a defect at the time of the transfer of risk, we are entitled and obliged to provide subsequent performance. The supplementary performance shall be performed at our discretion either by means of r epair or replacement, insofar as this is considered reasonable for the customer. The cost of the supplementary performance, in particular transport, call - out, operating and material costs, shall be borne by us. §439 paragraph 3 of the German Civil Code (BG B) shall continue to apply.
(4) Insofar as the supplementary performance fails, is unacceptable to the customer, is not performed within a reasonable period of time specified by the customer or is refused, the customer may at his/her discretion withdraw from t he contract demand a reduction in the purchase price equivalent to the diminution in value attributable to the defect (reduction) or - within the limits of the following paragraphs - claim damages instead of performance.
(5) If a defect results in loss or dama ge, we are liable in accordance with the statutory provisions only to the extent that this involves personal injury, the damage falls under the German Product Liability Act or is based on intent or gross negligence.
(6) Insofar as the loss or damage is attribu table to a culpable breach of an essential contractual duty or a "cardinal obligation", we shall be liable in all other respects only for loss or damage which is typical for this type of contract.
(7) Further contractual and/or tortuous claims on the part of t he customer are excluded. We are therefore not liable in particular for loss or damage which has not occurred with respect to the delivery item itself, nor for any lost profits or other financial losses of the customer.
(8) The above provisions shall not apply to used goods. For these we shall be liable for defects of quality only in the case of the provision of an explicit guarantee, intent or gross negligence.
(9) §478 BGB shall not be affected by paragraphs 2 - 4.
(10) Claims pursuant to paragraphs 3 - 8 above shall become statute barred subject to §§438, no. 2, 634a para 1 no. 2, 479 BGB one year from the date of delivery of the goods. Accordingly, the right to withdraw from the contract and demand a reduction in the price is excluded in accordance with the statutory provisions..
(11) If our operating and maintenance instructions are not followed, parts are replaced or materials used which do not meet the original specifications or interventions carried out by unqualified personnel, our liability for defects shall no longe r apply insofar as the defects are caused by the above. If a defect exists and one of the cases referred to above applies, the customer shall be obliged to prove that the defect was not caused by any of the above conditions.
8. Miscellaneous Liability for Damages
(1) The provisions of section 7, paragraphs 5 - 7 shall also apply to claims for damages for other breaches of duty. They also apply accordingly to our non - contractual liability. All claims for damages shall become statute barred, except as provided fo r in section 7, paragraph 5, within one year. The limitation period is governed by §199 paragraph 1 BGB.
(2) In the case of a breach of a pre - contractual duty or an impediment to performance that already existed at the time of conclusion of the contract (§§311 II, 311a BGB), our obligation to pay compensation shall be limited to the negative interest.
(3) Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, co - workers, representatives and vicari ous agents.
9. Retention of Title
(1) We reserve ownership of the goods supplied until all our claims against the customer arising from the business relationship, including future receivables arising from contracts concluded simultaneously or subsequently, hav e been settled. This also applies if claims are transferred to an open account and the balance is drawn and recognised.
(2) The customer is entitled to sell or process the goods in the ordinary course of business. He or she is obliged to sell on the goods subj ect to the retention of title only under a retention of title unless they are paid for immediately by the third - party purchaser. All processing shall be performed on our behalf without this establishing any obligation on our part. In the case of the proces sing, combination or mixing of the goods subject to the retention of title with other goods, we shall receive a co - ownership share of the new item in all cases, i.e. in conjunction with processing, in the ratio of the value (= gross invoice value including ancillary costs and taxes) of the reserved goods to the value of the new item, and in the case of combination or mixing, in the ratio of the value of the reserved goods to the value of the other goods.
(3) The customer hereby assigns to us all claims to which he or she has a right from the resale with respect to a customer or third party. The customer is also entitled to collect these debts after assignment. Our authorisation to collect the claims ourselves shall remain unaffected by this; however, we will not make use of this right for as long as the customer duly meets his/her payment and other obligations. Upon request, the customer must inform us of the assigned claims and their debtors, provide all information necessary for collection, submit the relevant documents and inform the debtor of the assignment.
(4) In the case of behaviour that is in breach of contract on the part of the customer, in particular default of payment, we are entitled to rescind the contract and take back the goods. For the purposes of ta king back the goods, the customer hereby irrevocably permits us to enter his/her business and storerooms without hindrance and remove the goods.
(5) Insofar as and for as long as the retention of title exists, the customer may not transfer as security or pledg e goods or items produced from them without our consent. The conclusion of financing agreements (for example leasing) which involve the transfer of ownership of our reserved rights shall require our prior written approval, unless the agreement requires the financing institution to pay the share of the purchase price to which we are entitled directly to us.
(6) In the case of seizure and other interventions by third parties, the customer must notify us immediately in writing. The customer is prohibited from rea ching agreements with his/her own customers which may adversely affect our rights. He or she is obliged to insure the reserved goods immediately against theft, machine, fire and water damage.
(7) We hereby undertake to release the securities due to us at the c ustomer's request and at our own discretion if the realisable value of the securities exceeds the secured claims by more than 20% or exceeds their nominal value by more than 50%.
(1) The rights of the customer under contracts concluded with us are non - transferable.
(2) The invalidity of any contractual provisions shall not affect the validity of the other provisions.
(3) If the customer is a merchant according to the German Commercial Code, the place of jurisdiction for all disputes with him/her shall be ou r registered office. This place of jurisdiction is not exclusive.
(4) German law applies exclusively to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG