The following Conditions of Contract and Terms of Trade and Conditions of Assembly apply to all orders and deliveries of
Carvex Verfahrenstechnologie für Lebensmittel & Pharma GmbH
53557 Bad Hönningen
+49 (0) 2635. 789-0
Conditions of Contract and Terms of Trade
- Offers and conclusion of contract
- All deliveries and services are based on these Conditions of Contract and Terms of Trade. Auxiliary accords and deviating agreements, in particular deviations from these terms and conditions, require our express approval in writing.
- Accords and agreements, even if made by one of our representatives, do not become binding until we have confirmed such in writing.
- The terms and conditions are regarded as having been recognised upon issue of order, regardless of by whatever means, by acceptance of the delivery, even without written confirmation. The buyer recognises them in their prevailing version as binding, likewise for all transactions in future. Upon their announcement, they replace all terms and conditions applicable to that date. They are binding for both sides. However, changes are reserved to the extent that they become necessary during the duration of contract for technical or legal reasons or as a result of official regulations. Such changes shall be recorded in writing in a rider.
- Our offers are always made without obligation and are made on the proviso of intermediate sale. They only become binding by prompt acceptance or our written confirmation of order. Agreements made verbally or over the telephone require our written confirmation to be effective.
- Documents (such as depictions, drawings, details of weights and dimensions) are solely approximations. We reserve ownership and the copyright to project documents, drawings and other documents. They may not be made accessible to third parties.
- We reserve the right to make changes (both to parts of the plant and to the design), if this appears necessary or advantageous whilst processing the project. The buyer shall be informed of significant changes in good time.
- The buyer must observe the official regulations prevailing at the installation site. It must likewise obtain the permits needed to install the systems from the responsible authorities and supervisory bodies in good time and observe any requirements. The same applies to obtaining any import, export and transit permits that are required. The buyer itself bears the liability for losses incurred due to non-compliance with the aforesaid regulations. Our offer price includes the fee for pre-testing, construction testing and pressure testing of pressure vessels in accordance with the current German regulations. Unless something different is explicitly specified, costs for additional acceptance tests and documentation of the same are not included in the prices.
- Although the details of performance and the consumption values are based on thorough research drawn from practice, they are solely approximations because the performance of the systems depends, for example, on the quality of the materials used and on proper operation.
- Price and payment agreements
- Our prices are ex-works. They do not include value-added tax, which shall be charged at the prevailing rate. They likewise do not include import taxes and other such charges, packaging, loading, freight, installation (assembly) or commissioning. They are based on the prices of materials and wages at the date that the offer is presented.
- If this cost basis changes up to the date of completion of production, we reserve the right to make an adjustment using the sliding price formula customary in the trade (VDMA), unless a fixed price has been explicitly agreed.
- Unless agreed otherwise, payments are due net in cash. The following method of payment applies to orders in excess of € 5,000 and to customised manufactures:
- 1/3 upon issue of order
- 1/3 upon notification of readiness to ship
- 1/3 30 days after notification of readiness to ship
- If payment target dates are missed, interest and commission are charged at the interest rate charged by banks for short-term credit, although at least at the level prescribed by law, i.e. 8 percentage points above the prevailing base rate of interest set by the German Bundesbank. We only accept bills of exchange and cheques to facilitate payment, whereby bills of exchange are only accepted on the reservation of discountability. The buyer bears the costs of discounting and collection.
- Allowances, such as discount for cash payments, reductions or other benefits are only granted on the basis of a separate agreement in writing. Allowances of any type do not apply if other due claims are still outstanding at the date of payment or if an application to open insolvency proceedings against the buyer's assets or a similar application is made in accordance with the statutory regulations applicable at the buyer's registered office.
- The buyer cannot offset its claims against our claims or pursue rights of retention unless its counter-claims are undisputed or have been established by a court of law.
III. Reservation of title
We reserve ownership to the delivery item until we have received all payments due under the delivery contract. Up to that date, the buyer must insure the delivery item at its expense in our favour against fire, water, theft, accidental destruction and other damage.
The buyer may neither pledge the delivery item nor assign it as security. It must notify us without delay of any attachments, seizures or other disposals made by third parties. If the buyer is culpable of conduct in violation of contract, in particular if it is in default of payment, we are entitled to take back the delivery item after issuing a warning and the buyer is obliged to hand it over.
- Deadlines for deliveries and services
We state non-binding delivery periods to the best of our knowledge. They start to run from the date on which all questions involving the order are clarified, our drawings are approved, we send our definitive confirmation of order and from receipt of the agreed down payment. The delivery period is met if we notify the buyer of readiness to ship before it expires.
The delivery period is extended for an appropriate time in case we or our sub-suppliers are victims of an Act of God which is beyond our control and influence. The same applies in case of operational disturbances, strikes, lockouts, exclusions, difficulties in procuring raw materials etc.
The buyer's claims to recompense in all cases of late delivery, including after expiry of a period of grace set for us, are excluded, unless the delay is attributable to gross negligence or malice aforethought on our part. If the buyer can demonstrate losses in such cases as a result of the delay, we are liable to pay default damages of 0.5% per week of delay, although limited to a maximum of 5%, this percentage referred to the net contract price of the part of the plant subject to delay.
If dispatch is delayed by the buyer, we can demand full payment and charge the costs incurred for storage (at least 0.5% of the net contract price for each month). After a reasonable period of grace has expired fruitlessly, we are furthermore entitled to either dispose over the delivery item elsewhere and supply the buyer at an appropriately extended period of time or to withdraw from contract. Compliance with the delivery period requires that the buyer fulfils its contractual duties and obligations of cooperation.
- Shipment and transfer of risk
Risk is transferred to the buyer as soon as the delivery item leaves our warehouse. All dispatches, including any returns, travel at the buyer's risk. The same applies even if we assume the transport costs in an exceptional case.
The goods are packed and shipped in accordance with the methods customary in the trade and/or using equitable discretion, although without any obligation to choose the cheapest packaging or means of transport. Unobjected goods are evidence of faultless packaging. We do not take back the accompanying packaging.
- Assembly and commissioning work
If we agree to take on installation/assembly in return for remuneration, we bear the responsibility for the faultless erection of the systems. The Conditions of Assembly M 200 apply in such cases. We only execute such work on the basis of these conditions and these are regarded as agreed and recognised upon issue of order pursuant to Item I 2.
On request, the assembly work will be supervised by an engineer. We shall invoice the assembly costs and supervision expenses at the rates applicable at the date of assembly.
On request, the commissioning work and induction of the operating personnel can likewise be supervised by an engineer. We shall invoice the costs incurred.
VII. Liability for defects and expiry by limitation of time
- The buyer must inform us of obvious defects without delay in writing, although at the latest 2 weeks from receipt of the delivery item. Defects that could not be identified, even by the most careful inspection, must be notified to us in writing without delay after these have been established. If the buyer fails to observe this obligation, our liability for this defect is excluded.
- In case of a justified complaint, we will rectify a defective design or execution or sub-quality material by performing rework or making a substitute delivery at our discretion. We are entitled to call on third party services for this purpose. If the warranty costs are increased because the delivery item has been moved to a location different to that envisaged, the buyer bears these additional costs. If subsequent fulfilment fails, the buyer can choose between withdrawal or diminution.
- We are liable in accordance with the legal regulations, insofar as the buyer pursues claims to damages based on malice aforethought or gross negligence, including malice aforethought or gross negligence on the part of our representatives or vicarious agents. If we are not culpable of malicious violation of contract, our liability is limited to the scope of the foreseeable, direct, average losses typical for the contract. Legal liability due to harm caused to people, regardless of whatever type, remains unaffected. The buyer's claims concerning liability under product liability law likewise remain unaffected.
- The buyer's claims for defects expire by limitation of time 1 year from receipt of the delivery item. This does not apply if we can be accused of gross culpability, or in case of fatalities, physical injuries of harm to health attributable to us.
- Moreover, we guarantee that we observe the German regulations, directives and state-of-the art applicable to the planning of the system. If necessary, the systems will be subject to official acceptance by the responsible technical testing institute (TÜV) in return for remuneration of the costs involved. These guarantees apply under the proviso of compliance with the data stipulated for energy, operation and maintenance of the systems in accordance with our instructions.
VIII. Applicable law, place of fulfilment and jurisdiction
German law shall prevail over the business relationship between the parties to the exclusion of UN Commercial Law. The place of fulfilment and jurisdiction for all claims and legal disputes arising from the contractual relationship, including processes related to bills of exchange and documentary evidence, is Linz. However, we can take action against the buyer at the court responsible for its registered office. Even if individual provisions in contracts concluded in accordance with the foregoing Conditions of Contract and Terms of Trade are unworkable, this shall not affect the workability of the remaining provisions.
Conditions of Assembly M 200
Orders issued to us for assembly, commissioning, repair, maintenance and inspection work shall be performed by well-trained personnel. We shall deploy the skilled employees required by the complexity of the systems in question.
- Our personnel have been instructed to only work on systems/machinery delivered by us as a matter of principle. Our approval is required before we take on any work beyond this. We do not assume any liability for such work.
- All estimates of the time required to perform assembly, commissioning, repair, maintenance or inspection work are approximations because this depends on the conditions on-site and on support from the customer. If the work is delayed due to circumstances for which we are not responsible and/or if we are ordered to interrupt the work, the customer bears the costs incurred. The customer is obliged to accept the assembly, commissioning, repair, maintenance or inspection work as soon as its completion has been notified. The customer must confirm that the system is ready for operation to our assembly personnel in writing. If acceptance is not performed without delay after notification of completion and the presence of our personnel is required at a later acceptance date, we shall charge for this separately.
- We charge a loan fee for sophisticated tools, measuring instruments and equipment. The fee takes account of the range of the devices agreed beforehand and is charged on a weekly basis from the date of dispatch to the date of return. The customer furthermore bears the additional freight and transport costs.
- Assembly material is charged by the actual costs incurred.
- The customer must provide electrical power up to the point of connection (distributor station, motors, devices etc.).
- The customer shall provide the following technical assistance at its own expense:
- suitable auxiliary workers and skilled personnel with appropriate equipment;
- ensure adequate space for the work to be performed unhindered (e.g. free transport paths, completed construction and foundation work, transport and lifting equipment, dry materials stores able to be locked, provision of the delivery materials, on-site electricity, operating materials and consumables, well lit workplaces protected from the weather, heated workplaces if the outdoor temperature is below 0 degrees Celsius);
- suitable rest rooms for our personnel that are heated and able to be locked with appropriate furnishings, sanitary facilities and "First-aid" equipment;
- costs of transporting our personnel to the construction site (if it is not possible to find reasonable living quarters in the vicinity of the construction site, the customer bears the demonstrable added costs (i.e. travel expenses and short-distance accommodation allowances);
- The customer must ensure that the local safety regulations are observed and that special protective clothing and equipment are provided. We cannot accept any liability for the supplies and tools provided by the customer, the execution of the work or the personal safety of the workers provided.
- If new systems are assembled and commissioned, we extend a warranty in accordance with our Conditions of Contract and Terms of Trade on which the main order is based. Repair, maintenance and inspection work is performed by well-trained personnel in good faith. In order to complete the work economically in a time span reasonable for the customer, all-encompassing testing and overhauls cannot be made, so that repairs to other components may be necessary. We therefore do not accept liability for repairs which prove necessary at a later date.
- We extend a warranty for the services provided and for original spare parts delivered and installed by us in accordance with our Conditions of Contract and Terms of Trade. Exceptions to this are disturbances attributable to inadequate maintenance or to a change in the contractually-agreed operating conditions.
- To enable us to submit an accurate invoice, we request that the customer confirms the hours worked, overtime and additional work on our pre-printed forms completed by our personnel. The customer shall receive a carbon copy. By signing our work sheet, the customer acknowledges the details of specific expenses and the hours worked in a legally binding manner. The customer may not make deductions from the invoiced sum due to any kind of objections or counter-claims. The rates charged for assembly hours, daily allowances and flat-rate mileage allowances are net amounts. They do not include value-added tax, although account is taken of input tax relief. Invoices for assembly work are payable immediately upon receipt in cash without deductions. Value-added tax shall be charged and itemised separately.
- Our Conditions of Contract and Terms of Trade apply in addition.
Version of March 2006