General Conditions of Sale of Busch GVT Ltd, Crewe UK
1. General - Scope1.1. Unless otherwise agreed in writing, the following Conditions shall apply exclusively to sales, deliveries and provision of services, including future sales, deliveries and provision of services (hereinafter referred to jointly as „Deliveries" only), to all customers listed under 1.2.
1.2. The customer‘s terms and conditions of business shall apply only if we consent to them in writing. Above all they shall not attain validity simply because the customer refers to its terms and conditions of business (e.g. in the order) and we do not expressly object to these terms.
1.3. Unless otherwise agreed in writing the contract in all respects operate as an English contract and governed by English Law.
2. Quotations, conclusion of contract2.1. Our quotations shall not be binding. Unless otherwise specified in the order, for a period of one month from receipt by us the Customer shall be bound by its order. Contracts shall only come into being when we confirm an order in writing or effect delivery.
2.2. Our written confirmation shall be required in order for verbal amendments or telephone amendments to agreements that have already been reached and/or to these Conditions to be effective. We reserve the right to deviate from this information to an extent acceptable to the Customer, particularly if necessary to fulfil statutory requirements, for technical reasons or to promote progress.
2.3. The information pertaining to dimensions and weights and other technical specifications in our brochures, illustrations or other representations are approximate values only unless a) expressly described as binding or b) material.
2.4. Our product descriptions shall not constitute guarantees.
2.5. We shall retain title and copyright to all contractual documents produced by us. Dissemination or reproduction of these documents is not permitted.
3. Transfer of risk, part delivery, delivery periods, late delivery, force majeure, own receipt of delivery proviso, late acceptance3.1. For standard products (LX, LM, LT, VL) delivery shall be in accordance with DAP or CIP (Incoterms 2010®). For Project products (LA, LB, LG, LR, LN) delivery shall be FCA ex-works.
3.2. Unless we specify a different works to the Customer (e.g. in the quotation or order confirmation), the works shall be our works at Crewe, UK.
3.3. Even if we have exceptionally assumed other services, e.g. the shipping costs or delivery and installation, including using our own carriers, the risk shall then also pass to the Customer in accordance with DAP, CIP or FCA ex-works (Incoterms 2010®).
3.4. We shall be entitled to make part deliveries to an appropriate extent and accordingly to also submit part invoices.
3.5. Delivery periods shall not be binding unless we have expressly confirmed in writing that they are binding.
3.6. Delivery periods shall commence on receipt of our confirmation of order, but not until clarification of all the details of order execution and technical issues and receipt by us of all necessary documents (such as drawings or permits) and following receipt of a corresponding down payment or security for payment, if agreed. A delivery period shall be deemed to have been fulfilled if the goods have been prepared for dispatch by expiry of the deadline. Where call-off orders are concerned the delivery period shall be a minimum of 6 weeks from receipt by us of the request. The above regulations shall otherwise apply accordingly.
3.7. The day of unloading shall be deemed the delivery date if we are delivering to a consignment warehouse for the Customer.
3.8. The delivery period shall be extended by the duration of unforeseen and unavoidable occurrences, and events for which we are not responsible (e.g. force majeure, strikes and lock-outs, operational disruptions, difficulties in procuring materials and energy, transport delays, labour, energy and raw materials shortages, official measures, embargoes and problems procuring permits, especially import and export licences) and their impact. This shall also apply if the obstacles are caused by our upstream suppliers or during an existing delay. Both parties shall be entitled to repudiate the contract if the obstacle is more than temporary. In the cases set out in section 3.9, compensation claims shall be excluded.
3.9. Our obligation to effect delivery shall be subject to timely and correct delivery to us by our suppliers, unless we are culpable for the incorrect or late receipt of delivery. We may repudiate the contract in such cases.
3.10. We shall charge the storage costs incurred by us if dispatch is delayed as a result of circumstances for which we are not responsible.
4. Prices, payments4.1. Our prices are understood to be in accordance with details given in 3.1 net in GBP, plus packaging costs and the applicable value added tax.
4.2. Our invoices shall be payable within 30 days from date of invoice, without deduction.
4.3. Irrevocable receipt of payment to our account shall be authoritative for timely payment. We shall only accept cheques and bills of exchange on account of performance and only by written agreement, with the Customer bearing discounts and fees.
4.4. In the event of the Customer defaulting on payment, we shall be entitled to make all invoices payable immediately and, if we do not sustain a further loss, to charge default interest at eight percentage points above the base interest rate (section 247 BGB).
4.5. We shall be entitled to demand advance payments or payment of security if the Customer has defaulted on a due payment to us, or if realisation of our claims seems endangered for another reason. We shall then affect our delivery contemporaneously with the Customer's advance payment or provision of security. We can repudiate the part of the contract for delivery that has not yet been fulfilled if the Customer does not comply with our request within an appropriate period. This period may be dispensed with if the Customer is apparently unable to furnish the collateral, for example if an application has been filed for insolvency proceedings to be instituted against the Customer's assets.
4.6. The Customer may only offset our claims or assert a right of retention if its counter-claims are undisputed or non-appealable.
4.7. Cancellation charges – charges will be applicable, if orders are cancelled, through no fault of Busch GVT Ltd, at the following rates; 20% of the order value, if no material has been received, 40% if all major material has been received, 60% if machining work has been undertaken on major components and 100% if machining work has been completed on all major components.
5. Liability for defects5.1. The Customer must check the delivery immediately after receipt. We must be immediately notified in writing of all obvious material defects, but at the latest within eight days of receipt of the delivery. We must be notified in writing of concealed material defects at the latest five days after discovery. The Customer must state the nature of the material defect as precisely as possible in the notification. If these deadlines are exceeded, all claims and rights that should have been identified and notified, arising from the warranty for the defects, shall expire.
5.2. In the event of justified complaints, we shall choose whether we effect substitute delivery or repair the goods. If the subsequent performance is abortive, the Customer shall be entitled to either choose to appropriately reduce the purchase price or to repudiate the contract in the event of grave defects. Should subsequent performance prove abortive, in accordance with section 7.1, the Customer shall be entitled to demand compensation instead of performance.
5.3. The statutory concept of material defect shall apply. In particular the Customer shall not be due warranty claims in the event of improper treatment of the goods, excessive use and other violations of the installation and operating instructions, in the event of use of unsuitable machinery and equipment, and in the event of excessive chemical, electronic or other exposures occasioned by use. Warranty claims shall furthermore be excluded in the event of improper transportation, incorrect storage and incorrect maintenance or repair.
5.4. We shall not assume the costs of supplementary performance incurred as a result of the goods having been brought after delivery to a place other than the Customer's commercial place of business.
5.5. If the defect has been caused by a material third-party product, initially we shall be entitled to limit our liability to assignment of our warranty claims and rights due to us in respect of the supplier of the third-party product, unless satisfaction arising from the assigned claim or right is abortive or cannot be enforced for another reason. In this case the Customer shall again be due the rights under section 5.2.
5.6. The limitation period shall be 12 months from passing of risk, unless we are liable for physical injury, intentionally or grossly negligently breach of our obligations, maliciously conceal the defect, or have assumed a more extensive guarantee in this respect, or there is compelling provision for a longer statutory period.
5.7. Breach of third-party rights shall only constitute a defect if these industrial property rights exist in the UK.
6. Retention of title6.1. We shall retain title to the delivered goods until fulfilment of all claims arising from the business relationship with the Customer. If there is a current account arrangement, the retention of title shall extend to the acknowledged balance.
6.2. Processing and finishing by the Customer of the goods supplied under retention of title (reserved goods) shall invariably be undertaken for us, without obligating us. In the event of mixing and combination with other goods, we shall acquire joint title to the new goods to the value of the reserved goods' net invoice value pro rata to the value of the other materials. The newly created object shall be regarded as reserved goods within the terms of section 6.
6.3. The Customer shall be entitled to sell the reserved goods or the new goods on to third parties in the ordinary course of business. The Customer shall, however, hereby assign to us, as security, all claims that accrue to it from sale or use, in full and in advance. We shall accept this assignment. The Customer shall, however, remain revocably authorised to collect the claims assigned to us in its own name.
6.4. If the Customer no longer fulfils its payment obligations to us, we can revoke the authority to sell on and use. We can then collect the claims assigned to us ourselves and demand that for this purpose the Customer notifies us of the assigned claims and their debtors, provides all the information required for collection, issues us with the concomitant documents and informs its debtors of the assignment. We shall also be entitled to take back the unused reserved goods. Taking back the reserved goods shall not constitute rescission of the contract. If we declare rescission, we shall be entitled to sell by private agreement.
6.5. Whilst the retention of title exists, the Customer shall be obliged to treat the reserved goods carefully and to adequately insure these against loss and damage (in particular theft, breakage, fire and water), for the replacement value, and to maintain the insurance at its expense. The insurance policy and proof of payment of the premiums must be submitted to us on request. The Customer hereby now assigns to us claims arising from the insurance subject as a result of the transfer of title to the Customer.
6.6. We must be immediately informed in writing of third-party access to the reserved goods. If they cannot be recovered from the third party, the Customer shall assume costs incurred as a result of preventing access.
6.7. If the value of the security exceeds our claims by more than 10%, at the Customer's request and at our discretion we shall release our security to this extent.
6.8. Should the retention of title be ineffective according to the law of the land in which the reserved goods are located, at our request the Customer must furnish an equivalent security. If the Customer does not comply with this request, regardless of agreed payment terms, we can request immediate payment of all outstanding invoices.
7. General liability7.1. Claims for compensation against us are excluded, irrespective of their nature, if we, our legal representatives or vicarious agents have caused the damage through ordinary negligence. This exclusion of liability shall neither apply in the event of injury to life, limb or health, nor in the event of assumption of a contractual guarantee, nor in the event of a breach of material contractual obligations. Material contractual obligations are those whose fulfilment facilitates due and proper performance of the contract in general, and on compliance with which the Customer normally relies and should be able to rely and violation of which endangers achievement of the contract's purpose. In the event of assumption of a guarantee, our liability shall, however, be limited to the extent of the guarantee and, in the event of ordinary negligent breach of material contractual obligations, shall be limited to the foreseeable damage typical of the contract.
7.2. Compensation claims shall be time-barred one year after the Customer acquires knowledge of the damage and the liability to pay compensation, or ought to have acquired it without gross negligence.
8. Applicable law, place of performance and jurisdiction8.1. UK law shall apply. The UN Convention on Contracts for the International Sale of Goods of 11.04.1980 is excluded.
8.2. The place of performance for payment shall be our registered office in Crewe, UK. The place of performance for all other obligations, in particular delivery, shall be our respective works.
8.3. The jurisdiction for all legal disputes arising from the business relationship shall be governed by our registered office. We shall, however, also be entitled to sue before the courts competent for the Customer's registered office.