Terms and Conditions

Legal information

General Terms and Conditions for sale and supply for export of adp Gauselmann GmbH

I. Definitions

In these General Terms and Conditions for the Sale and Supply for Export the following expressions shall have the meanings as hereinafter set out:

    • "The Terms and Conditions" mean these General Terms and Conditions for the Sale and Supply for Export.
    • "adp" means adp including its subsidiaries, holding-corporations or firms or related corporations or firms.
    • "The Customer" means any person, firm or corporation or legal assignee or successor of such person, firm or corporation.
    • "The Goods" mean those items which are specified in adp's written confirmation of order.
    • "The Reserved Goods" mean those items sold and delivered in which title has not yet passed to the Customer.
    • "The Contract" means the agreement between the Customer and adp for sale and supply of the Goods to the Customer.

 

II. General

These Terms and Conditions shall exclusively apply to all transactions of adp. They shall take precedence if the Customer uses its own standard conditions differing from these Terms and Conditions. Such Terms and Conditions are hereby expressly rejected. Any variations from these Terms and Conditions, oral, telegraphic or statements by telephone or e-mail made by adp's representatives or authorized agents are always provisional and require adp's confirmation in writing to be binding upon adp.

 

III. Scope of Delivery

(1) The scope of delivery is to be determined by adp's written confirmation of order. In the event that adp submits an offer open for acceptance within a specified period and that offer is accepted by the Customer within that period, this offer shall determine the size of the order. Any amendments to or variations from adp's written confirmation of order or adp's offer require adp's confirmation in writing.
(2) If not expressly declared to be binding technical data is only approximate data. Weights and measures are given within the allowed tolerances of technical rules or the tolerances of the German Industrial Norms for measure, form and weight. The same applies to all further data and information contained in any other document in particular illustrations, drawings, descriptions, catalogues which intend merely to give a general description of the goods that adp is able to supply and any person reading them may not rely on anything contained therein as being a representation of fact concerning the goods sold and delivered by adp or as being any warranty relating thereto whether as to their condition or otherwise.
(3) Upon request of the Customer, adp may agree to provide trained installation personnel for the installation, the commissioning and instruction. The costs herefore are borne by the Customer.
(4) The Customer is responsible for any safety precautions whatsoever imposed by the conditions at the place of installation. Adp's liability in that respect is expressly excluded. The exclusion of liability as aforesaid shall not apply in such cases in which adp shall provide the installation and set-up according to III. (3) of the Conditions but always provided that adp shall only be liable for grossly negligent or wilful acts.

 

IV. Prices and terms of payment

(1) Subject to any specific agreement in writing prices are ex works – Lübbecke or any other national or foreign subsidiary of adp mentioned in adp's written confirmation of order - plus the statutory value-added tax in the amount which is from time to time in force.
(2) Subject to any specific terms of payment the price must be paid in cash without deduction and/or charges at adp's place of payment in the following way:

    • advance payment;
    •  letter of credit payable on sight.

(3) Subject to prior agreement payment can be effected by an irrevocable, confirmed letter of credit payable at a first-class German bank.
(4) Adp is entitled to charge interest from the due dates mentioned in the confirmation of order. The Customer shall be in default of payment after having received our reminder. A reminder is not required in case there is a contractual date for payment or the parties have agreed on payment within a certain period of time after an event specified in the contract has occurred. In any case the Customer will be in default of payment 30 days after the receipt of the invoice, at the latest or if the date of the receipt of the invoice cannot be determined, 30 days after receipt of the delivered goods. Should the Customer be in default of payment, adp shall be entitled to claim interest amounting to 8 % above the respective basic prime rate mentioned in § 288 BGB (German Civil Action Code). Any of adp's rights to claim for further damages caused by the default in payment hereby remains unaffected. Should the Customer fail to pay any sum due and payable after the setting of a reasonable written deadline, adp is entitled to repudiate the contract or to claim damages for breach of contract. In the latter case adp is entitled to liquidated damages amounting to 25 % of the total price of the contract. The amount of liquidated damages shall be higher if adp proves a higher damage or lower should the Customer prove a lower damage.
(5) Any rights of retention of payment based on alleged remedies of the Customer against adp or any other rights of the Customer against adp which do not arise under the specific Contract (i.e. claims under another contract between the Customer and adp) are expressly excluded. Any set-off with the Customer's claims against adp's claims is not allowed except insofar as such claims of the Customer are undisputed or subject of a final and conclusive judgement of a competent court.
(6) Adp shall accept bills of exchange or cheques only upon prior written agreement but always provided that where payment is made by means of bill of exchange or cheque or any other negotiable or not negotiable instrument, adp shall not be deemed to have received payment until the bill of exchange, cheque or other negotiable or non-negotiable instrument has been honoured notwithstanding that adp may have negotiated such instruments and received value therefore. Any costs of any kind in respect or negotiation of any instrument as aforesaid are borne by the Customer.
(7) Adp is entitled to request the Customer at any time to provide adequate security for its claims against the Customer. Irrespective of the dates of majority of bills of exchange, cheque or any other negotiable or not negotiable instruments accepted by adp, any claims of adp against the Customer shall be immediately due and payable upon occurrence of any of the following events:
(a) if the Customer does not fulfil any of its obligations within the time specified
(b) if the Customer is in breach of any other contractual obligation,
(c) if any circumstances arise which justify bona fide doubts as to the solvency of the Customer and might jeopardize adp's right to consideration agreed.

 

V. Packing

The packing of the Goods is within adp's choice and sole discretion. Any costs in that respect shall be borne by the Customer.

 

VI. Delivery Period

(1) Adp's quotation of delivery periods is without legal obligation.
(2) In principle the delivery period commences upon dispatch of the confirmation of order. Should an advance payment have been agreed upon which is immediately due and payable upon placing of the order, the delivery period commences upon adp's receipt of such payment as aforesaid.
(3) The delivery period will be met if on its expiry the Goods have left adp's works or if the Customer has been notified of their readiness for dispatch. Upon adp's notification that the goods are ready for dispatch, the Customer is on the immediate obligation to accept delivery of the goods. Should delivery not be accepted adp is allowed to store the Goods at the Customer's cost and risk of loss and to invoice the Goods as delivered.
(4) Reservation is made that adp is supplied in a punctual and correct way with the material required to fulfil its obligations to the Customer.
(5) The delivery period will be extended by an appropriate amount of time in the event of force majeure which shall include but not be limited to acts of God, war, riots, industrial disputes, strikes and lock-outs, and unforeseen obstacles which are beyond adp's control, insofar as such obstacles can be shown to have exercised a considerable influence on the completion or the delivery of the Goods. The aforesaid circumstances are also not to be attributed to adp if they occur during an already existing delay. adp shall notify the Customer as soon as possible of the beginning and the end of obstacles of the type mentioned above.
(6) If dispatch is delayed upon request of the Customer, adp shall be entitled, after the expiry of one month after notification of the readiness of the Goods for dispatch, to invoice the Customer for storage costs, also in case of storage in the works of the manufacturer, with an amount of at least 0.5 % of the invoice amount for every month. This amount shall be higher should adp prove a higher amount of expenses or lower should the Customer prove lower expenses. Adp is entitled to fix an appropriate extended period of grace and on its expiry without delivery having been made, to dispose otherwise of the Goods and to supply the Customer within an appropriate delivery period at the prices then valid.

 

VII. Passing of risk

(1) Unless otherwise agreed in writing, all Goods are supplied ex-works, Lübbecke/Germany or any other adp production facility or warehouse. The Customer assumes all risk and liability for the Goods including any liability arising from or incidental to the use, operation, maintenance, repair and storage of those Goods from the date they leave adp's premises.
(2) The risk of loss and deterioration of the Goods shall pass to the Customer immediately upon dispatch of the Goods to the Customer. The same applies if adp has accepted additional obligations, such as transportation costs.
(3) Should the dispatch be delayed in consequence of circumstances for which the Customer is responsible, the risk of loss and deterioration of the Goods shall pass to the Customer at the date of notification of readiness of the Goods for dispatch.

 

VIII. Delay in Delivery

(1) The Customer is entitled to compensation should adp be in default of delivery and damage be caused thereby. Such compensation as aforesaid shall be limited in amount to 1/2 % for each week in which adp is in default of delivery but not be over and above 5 % of the total value of such part of the total Goods delivered which cannot be used in time according to the terms of the Contract by reason of adp's default in delivery as aforesaid. The amount of compensation shall be lower if adp proves a lower damage or higher if the Customer proves a higher damage. The limitation of liability as aforesaid shall not apply should the delay in delivery be caused by a grossly negligent or wilful act of a chief executive or a duly authorized agent of adp.
(2) Notwithstanding the right to repudiate the Contract in case of defects (see XI. Warranty) the Customer may repudiate the Contract in case of default in delivery or impossibility to deliver due to a circumstance within adp's control only if the delay in delivery or the impossibility to deliver as aforesaid is caused by a negligent or wilful act of the chief executive or a duly authorized agent of adp.
(3) Should adp not deliver within the delivery period, the Customer shall have the right to set a written final deadline of at least 2 weeks indicating expressly that the Customer will upon fruitless expiry of said deadline repudiate the Contract and/or claim for damages. Upon fruitless expiry of this deadline the Customer shall upon request declare whether the Customer still claims for delivery or for damages or will repudiate the Contract. The Customer is not entitled to repudiate the Contract or to claim for any damages instead of the delivery in case the Customer does not notify adp within a reasonable deadline set by adp about his intention.
(4) Should adp unjustifiably refuse the delivery or in case of specific circumstances that - after considering both parties interests - justify an immediate repudiation of the Contract, the Customer is not obliged to set a final written deadline as mentioned above in VIII. (3).
(5) The Customer is not entitled to repudiate the Contract before the delivery is due or in case of an irrelevant breach of adp's obligation. Furthermore, the Customer is not allowed to repudiate the Contract in case circumstances that would allow such repudiation have wholly or partly been caused by the Customer or in case such circumstances occur during a delay in acceptance of the Customer.
(6) As far as possible claims for damages are concerned see XII. of the Conditions.

 

IX. Retention of Title

(1) Notwithstanding any of the provisions of these Conditions, the title to the Goods shall remain with adp until full payment of the price has been effected including additional claims such as interest and claims arising under any other contract between adp and the Customer, but always provided that where payment is made by means of bill of exchange, cheque or other negotiable or not negotiable instrument, adp shall not be deemed to have received payment for the purpose of this provision until the bill of exchange, cheque or other negotiable or not negotiable instrument has been honoured notwithstanding that adp may have negotiated it and received value therefore. The Customer will do any act required by law or otherwise to make the retention of title of adp valid and effective. The title to the Goods as well as any other rights under clause IX. of these Conditions shall remain valid and effective until adp is totally released from any contingent liability which adp undertook in the interest of the Customer, in particular such liabilities as aforesaid resulting from the negotiation of negotiable instruments.
(2) The Customer shall store the Reserved Goods separately and in such way that they can be readily identified as being adp's property as long as title to the Reserved Goods has not yet passed to the Customer under these Conditions.
(3) The Customer may sell the Reserved Goods in the ordinary course of its business to a bona fide purchaser for value without notice of adp's rights, but the Customer shall then be under a fiduciary duty to account to adp for the proceeds of such sale up to the total amount due from the Customer to adp in respect of the Goods or any other contract where payment has not yet been effected. The Customer is obliged to deposit any such proceeds from the re-sale of the Reserved Goods up to the amount of the outstanding balance due to adp in a separate account and to keep those proceeds apart from other monies.
(4) Should the Customer be in breach of Contract, in particular be in default of payment, adp shall upon prior notice to the Customer have the immediate right to retake possession of and permanently retain any of the Reserved Goods. In such case, adp or its duly authorized agents shall have the right to enter the premises of the Customer to execute the right to retake. Adp shall then be entitled to sell the Reserved Goods and to apply the proceeds of sales first in discharge of the outstanding sum due from the Customer to adp and then as to any surplus upon trust for the Customer. The execution of the right to retake possession or any execution or distress levied upon the Reserved Goods by adp shall not be regarded as implied repudiation of the Contract.
(5) The Customer's rights in respect of the Reserved Goods as aforesaid are granted on the condition that the Customer duly complies with its obligations hereunder and restricted to transactions in the ordinary course of business. The Customer is not allowed to dispose in any other way the Reserved Goods, in particular to execute a bill of sale, to create a charge or any other legal or equitable instrument in order to give security to its creditors.
(6) Adp may at any time revoke the Customer's power of sale by giving notice to the Customer if the Customer is in default of payment of any sum whatsoever due to adp or if adp has bona fide doubts as to the solvency of the Customer.
(7) The Customer's power of sale shall automatically cease at any time upon occurrence of any of the following events:
(a) if the Customer commits any act of bankruptcy or compounds or makes any arrangement with its creditors or executes a bill of sale on its assets or any part thereof or if any execution or distress is levied upon the Reserved Goods;
(b) if the Customer being a company is wound up either compulsorily or voluntarily or a receiver on its assets is appointed.
(8) Should any execution or distress be levied upon the Reserved Goods, the Customer shall without delay notify adp thereof and deliver to adp any documentation required in order to object to such execution or distress. The costs for any action taken by adp in order to defend its rights against third parties shall be borne by the Customer provided that a court did not finally charge these costs to the third party and these costs have not been refunded by such third party.
(9) Notwithstanding any of the provisions under clause IX. of the Conditions, adp may maintain an action for the price of the Goods and the execution of any right whatsoever conferred to adp by virtue of these Conditions shall be at adp's sole discretion.

 

X. Notice of defects

(1) Notice of defects or any other complaints must be given without delay at the latest 10 days after receipt of the Goods. Notice of hidden defects must be given without delay at the latest 10 days after the discovery of such defects but not later than 6 months from the receipt of the Goods.
(2) After expiry of the periods under clause X. (1) of these Conditions, adp shall be discharged from all liabilities arising from defects of the Goods and any rights of the Customer of whatsoever nature are excluded. 

 

XI. Warranty

(1) Should the Customer notify adp in accordance with X. of the Conditions of an existing defect of the Goods or of any other complaints as mentioned in X. (1) of the Conditions, then for a period of 6 months from the actual delivery of the Goods adp's liability shall according to adp's choice be limited to either replace or repair of such defective Goods, provided that the Customer shows, that the defect or any other complaint was already existent at the point in time of the passing of risk. Adp shall be liable for a period of 24 months in the event of the death or personal injury of the Customer. Adp shall not be liable for defects of used or second-hand goods.
(2) The Customer has - after consultation with adp - to grant adp the time required to repair or to replace the Goods. Any Goods or parts thereof which have been replaced by adp in consequence of its liability for defects shall be the property of adp. These Goods or parts thereof have to be sent to adp free of charge.
(3) Should the defect not have been remedied by adp either by two attempts to repair the Goods or one replacement delivery, then the Customer shall be entitled instead of repair or replacement
(a) to request a reduction of the price agreed upon or
(b) to repudiate the Contract as well
(c) to claim for damages according to XII. of the Conditions. The same shall apply mutatis mutandis if adp unjustifiably refuses a necessary repair or delays such repair without good reason, if it would be unreasonable to require the Customer to accept such repair for any other reason whatsoever and howsoever arising, or upon fruitless expiry of a reasonable deadline set by the Customer for adp's repair or replacement delivery.
(4) Adp is under no obligation to repair or to any replacement delivery, in case the costs for such repair or replacement delivery are unreasonably high. The costs shall be deemed as unreasonably high if they exceed 25 % of the purchase price of the Goods.
(5) Should Customer's notification of defects be unjustified, adp will be entitled to claim for all costs that arise from such unjustified notice of defects.
(6) Should the Customer transfer the Goods to another place than the place where the Customer has ordered the Goods and should the costs for repair or replacement delivery, including but not limited to costs for transport, work and material, therefore increase, the Customer shall only be entitled to claim for the costs that would also have arisen in case the Goods still had been at the place to which they were delivered, unless the transfer of the Goods corresponds with the normal use of such Goods.
(7) Adp's liability for defects in respect of products which have been supplied by a third party shall be limited to assigning its rights and claims against such third party to the Customer. Should the Customer not be able to enforce its rights against the supplier of such products as aforesaid, adp shall be liable for defects as set out in the Conditions.
(8) Without limiting its liability for defects adp expressly excludes any liability arising in particular on the following grounds:

    • inappropriate or improper use of the Goods;
    • inappropriate or wrong storage;
    • usual wear and tear, in particular of consumables, such as fluorescent tubes and light bulbs;
    • improper or negligent handling;
    • inappropriate working material as long as damages arising therefrom are not caused by a grossly negligent or wilful act of adp.

 

XII. Liability

(1) Notwithstanding any other provisions in the Conditions all claims for damages of Customer, i.e. liability for defects, the liability for impossibility of performance and delay in delivery, any liability for damages arising from a breach of any obligation before or at the time of contracting, breach of secondary contractual obligations, tort, or any other consequential loss or damage of whatever nature and howsoever arising shall be excluded. The same applies to any liability of any kind of adp's duly authorized agents.
(2) Adp shall only be liable if and to the extent that it can be shown that adp or adp's duly authorized agents were acting wilfully or with gross negligence, including all cases in which adp was in breach of cardinal obligations whereby the overall purpose of the Contract was jeopardised.
(3) In case of a negligent breach of cardinal obligations – except gross negligent breaches of cardinal obligations -, adp's liability shall be limited to the amount of the value of the order.
(4) Should, as an exception, the value of the order mentioned in XII. (3) not correspond to the typically foreseeable damages that arise from such breaches of cardinal obligations, then adp's liability shall be limited to such typically foreseeable damages.
(5) The exclusion of liability shall not apply with regard to claims arising under the German Product Liability Act or in case adp has given a guarantee as to the fitness of the Goods for a specific purpose or as to their long-lastingness. Furthermore, this exclusion of liability shall not apply with regard to claims that arise from personal injury or death of the Customer.

 

XIII. Right of Withdrawal

(1) Adp shall be entitled to withdraw from the Contract especially in the following cases:
(a) in the event of force majeure as set out in clause VI (5) of these Conditions provided these events last for more than three months or they make it ultimately impossible for adp to deliver the Goods;
(b) in the event that after conclusion of the Contract such circumstances relating to the Customer become known to adp which throw doubts on Customer's credit-worthiness or ability to pay its debts in which case adp is alternatively entitled in its sole discretion to refuse performance or to request suitable security.
(2) The Customer shall have no right of whatsoever nature against adp to claim damages for losses of any kind arising from the execution of the right granted under foregoing sub-clause (1).

 

XIV. Intellectual Property and confidential Information

(1) The Customer acknowledges that supply of the Goods is not intended to convey any right, title or interest in any intellectual property right whether registered or not, in or relating to or used or developed in connection with or in support of the Goods, any part of them or in any associated or related documentation ("Intellectual Property").
(2) The Customer may not examine or research or take notice of any data stored within the electronic control – computer software - of the Goods. Such data is usually specially protected by a metal case and a sealing against unauthorized access. Any person trying to obtain or obtaining such data without authorisation will commit an offence.
(3) Adp grants to the Customer a non-exclusive, royalty-free, perpetual and irrevocable licence to use the Intellectual Property embodied in or represented by computer software contained in the Goods or supplied as spare parts. This licence specifically excludes the right to modify, adapt, reproduce or copy that software and to distribute, supply, give, sell or otherwise dispose of the Intellectual Property embodied in or represented by the software.
(4) The Customer will not at any time do any act or thing which impairs or may impair adp's right, title or interest in or to the Intellectual Property including but not limited to the alteration, amendment, removal of or to any copyright notice or other proprietary notice incorporated in or affixed to any part of the Goods or related documentation.
(5) The Customer must not disclose or purport to transfer any Intellectual Property to any third party.
(6) The Customer must treat as confidential all information, whether written or oral, received from adp regarding the Goods which is not generally disclosed to the public and which the Customer may learn in the course of or incidental to the supply of the Goods and any information designated by the company as confidential ("Confidential Information"). Confidential Information includes, but is not limited to, details in intellectual property and of any software, its source code or any flow charts, diagrams or data relating to the software or its method of operation.
(7) The Customer must not disclose to any person, other than those officers or employees of the Customer who need to have this information in order to carry out their duties on behalf of the Customer, all or any part of the Confidential Information, nor use any part or of the Confidential Information for its own purposes, or for the benefit of any third party, except as expressly authorized by law or with the prior written consent of adp.
(8) The Customer will ensure that its officers, employees and agents observe and maintain complete confidentiality with regard to all aspects of the Confidential Information, as if they were personally bound by these conditions.

 

XV. Export and Import

(1) Prior to the delivery of the Goods, the Customer must obtain any license, permit or authorization ("License") for export of the Goods from Germany if supplied ex-works, Lübbecke/Germany, or any other adp production facility or warehouse, and will comply with all other relevant requirements of German law. If requested, the Customer must provide adp with copies of these permits, licenses or authorizations.
(2) The Customer must obtain any importation license required by the country, state or territory ("the country") where the Goods will be delivered and where relevant or required, any license to use, operate or possess the Goods in that country ("License") and will comply with all other relevant requirements of that country.
(3) If a License, required under condition XV. (1) or XV. (2) of the Conditions is not obtained or, if obtained, is cancelled, revoked or suspended by the issuing authority prior to the delivery date, the obligations of adp in relation to the delivery will be suspended. If the License is not obtained by the Customer within a reasonable time, which will not exceed 30 days, adp will be under no obligation to supply the Goods and the agreement between adp and the Customer to supply the Goods will be terminated without liability on the part of adp to the Customer.
(4) The Customer must ensure, that all documentation required to export or import the Goods correctly describes the Goods.

 

XVI. Compliance with Laws

(1) Unless otherwise stated, where operation, use or possession of the Goods is subject to any governmental or regulatory approval, consent or authorization of any kind ("Approval") the Customer will be responsible for and will pay all costs associated with obtaining the Approval.
(2) If the Customer does not comply with XVI. (1) or the Customer is unable to obtain any Approval, the obligations of adp will be suspended. If the Approval is not obtained within a reasonable time, not exceeding 30 days or any longer period adp allows, adp is under no obligation to supply the Goods and may terminate the agreement between adp and the Customer to supply the Goods without liability on the part of adp to the Customer.

 

XVII. Trading terms

The INCOTERMS 2000 are applicable subject to the specific provisions of these Conditions or the Contract which shall prevail.

 

XVIII. Applicable law

These Conditions and any Contract hereunder between adp and the Customer shall be governed by and construed in accordance with the Laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.

 

XIX. Place of performance/jurisdiction

(1) Place of performance for adp and the Customer is Bielefeld.
(2) Jurisdiction and venue for any actual or for future claims under the business relationship (including claims under bills of exchange or cheques) is the Superior Court of Bielefeld, without prejudice to adp's right to commence proceedings at the Customer's principal place of business.

 

XX. Final provisions

(1) The headings of the above provisions are for convenience only and have no importance for the interpretation of these Conditions.
(2) Should any of these provisions be or become invalid for whatever reason, the remaining provisions shall be unaffected. In such case, the statutory regulation shall be applicable in addition.
(3) Where appropriate in these Conditions the singular shall include the plural and vice versa and where there are two or more persons, firms or companies comprised in the definitions of the Customer, then the obligations imposed on them shall be joint and several obligations.

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