General terms and conditions of
AGIROSSI GMBH GMBH Industrietechnik
Rossano Vincenti – Waldlaubersheim
The following General terms of conditions of Agirossi GmbH are according to the German law:
1. Scope of application
Our deliveries, services and offers are exclusively on the basis of these terms of conditions. They are also valid for all future business relations even if they are not agreed explicitly. These conditions are regarded as accepted at the latest with the acceptance of our goods or services. Any acknowledgement from the side of the customer referring to his own business or purchase conditions will be hereby expressly rejected. Any divergent agreements shall require our express written consent.
2. Offers and contracts
In brochures, advertisements, price lists, circulars etc. contained offers are subject to change and without obligation. We shall be bound to specially prepared offers for 30 calendar days starting from the date of the offer. Acceptance agreements and all orders require confirmation by Agirossi, either in writing or via fax, to be legally valid. The same is true for amendments, changes or sub-agreements. Data of drawings, illustrations, dimensions, weights or other performances contained therein are only binding if explicitly stated. Agirossi reserves the rights of ownership and copyright in illustrations, drawings, calculations and other documents that were provided to purchaser. The sharing of such information with third parties must be approved by us in writing. Furthermore, it is forbidden to produce copies without our approval.
Our pricing is based on the prices valid on the day of delivery for the appropriate quantities and qualities, plus the statutory value added tax applicable on the day of delivery. Additional deliveries and services shall be calculated separately. Fixed prices require specific written confirmation. Should between closing the contract and delivery or while performing the services the in EUR converted price change of our suppliers or of our production costs, transport costs, public charges, wages etc. , directly or indirectly affected, we may also, in the case of fixed price agreements, change our prices accordingly. The prices are quoted, unless otherwise agreed, ex works without packaging costs, exclusively taking back and the costs for disposing of packing materials.
The delivery times mentioned in the order confirmations are valid when they were written confirmed. The period for delivery will be tolled during any periods of force majeure, operational or transportation disruptions, strikes, lockouts, difficulties in procuring materials, shortage of personnel, regulatory requirements etc, also when it happen at our supplier or sub-supplier. If the hindrance takes longer than 3 months the purchaser is entitled to withdraw after an appropriate term from that part of the contract which has not been fulfilled. Compliance with the delivery period stated by us presupposes that the timely and proper obligations of the purchaser are fulfilled. We also reserve the defense of non-performance of the contract.
5. Transport and passing of risk
The risk of accidental loss and accidental impairment of the goods passes, with the dispatch of the goods or of the extradition to the shipping agent, over to the purchaser, regardless of whether the shipment is the place of performance or who bears the freight charges. If we await a special transport instruction from the purchaser, the risk goes the purchaser with the readiness of dispatch. We recommend our customers to provide transport insurance.
6. Reservation of ownership
We reserve title to the delivered goods until full payment is made, of all under the business relationship with the purchaser made and still claims arising, for whatever legal reason. The adjustment of individual claims of current invoice as well as the account balancing and its recognition does not affect the proprietary rights. The purchaser is entitled to process the reserved goods to the ordinary business course and to sell the subject to retention of title as long as he is not in default. Pledges or security assignments are illegitimate.
In the case of distraints or other actions by third parties, the purchaser has to inform us about thereof immediately in writing so that we can rise action under §771 ZPO. If the pledgee is not able to reimburse us for the judicial and extrajudicial costs of an action under §771 ZPO, the purchaser is liable for the costs incurred by us.
The from the resale or from other legal reason (insurance, unlawful act) as to the reserved goods arising claims (including balances receivable of account current), the purchaser cedes already for safety’s sake to us. In case of access of third parties to the reserved goods the purchaser will indicate to our ownership and will inform us immediately. Costs and damages will be taken by the purchaser. Breach of contract by the purchaser – in particular default in payment – we are entitled to take back the reserved goods at the purchaser’s cost. In the repossession and the seizure of the reserved goods by us, is no termination of contract.
7. Warranty and liability
If the delivered good is defective or it misses its guaranteed properties or if it becomes defective within the warranty period due to manufacturing or material defects, we deliver at our option under the exclusion of any other warranty claims of the purchaser replacement or repair. The purchaser has to give us the opportunity to remedy within a reasonable time.
For third party products, our guarantee is limited to the cession of us against the supplier of the third party products required claims. We sell used merchandise under the exclusion for warranties, which means that the purchaser has not the right to reclaim the paid purchase price in whole or in part and / or to demand further compensation. The defective delivered goods are in the state in which they reside at the time of occurrence of the shortage, have to be ready to visit for us.
A breach of this obligation excludes any warranty claims against us. In particular, the purchaser is not entitled without our prior approval to perform repairs at the delivered goods himself. In an individual case, if we agree with the repair by the purchaser himself, we inform him in writing or by fax in which height we take the flat-rate costs for repair. Further claims are excluded. The warranty period for hydraulic cylinder is 12 months, with use of the delivery good in two-shift operation the warranty period is six months, when used in three-shift operation the warranty period is 3 months.
For other product groups the warranty period is 12 months, with use of the delivery good in multi-shift operation the warranty period is 6 months. The purchaser has to adduce proof that he has not used the delivery good in multi-shift operation. The warranty period starts with the transfer of risk. However, it ends no later than 12 months after the transfer of risk, unless the law prescribes longer periods. Liability for normal wear and tear is excluded. There is no warranty for damages arising from any of the following reasons:
- improper or incorrect use,
- faulty assembly or commissioning by the purchaser or third parties,
- natural wear,
- incorrect or improper treatment – particularly by excessive stress –
- or unsuitable resources.
Will give us the remedy or replacement delivery culpably impossible or has the purchaser give us a delay in vain a reasonable period of grace for late performance or redelivery, so he is entitled to withdraw from the contract. For bookings made by subsequent performance or redelivered replacements, we are liable only up to the expiry of the warranty period for the original delivery. We are not obliged to remedy or replace, as long as the purchaser does not fulfil his contractual obligations. Compensation claims from impossibility of performance, from positive breach of obligation, from negligence in contracting and from tort as well as claims for compensation of consequential damages in case of errors of guaranteed characteristics are excluded both against us and against our vicarious agents, unless we or they has caused the damage through gross negligence or willful misconduct.
Our invoices are payable within 14 days from the invoice date excluding deduction or within 10 days from the invoice date after deduction of a 2% discount, so far as it concerns to delivery of goods. Service or other services are payable immediately without deduction. The purchaser is not entitled for a discount as long as older invoices are open. We are entitled, notwithstanding any other provisions of the purchaser, to offset on previous debt. If costs and interest have already been incurred, we shall be entitled to offset the payment first against the costs, then the interest and finally against the main power. A payment shall be considered when we dispose the amount.
The acceptance of checks and the exchange occurs only as conditional payment. The handing in of exchange shall in each case our prior consent, which we reserve to base special exchange bonds. This also applies if the purchaser provides us with a check as partial or full available coverage of the exchange amount makes available. The purchaser has to bear the rebates and bill charges and shall pay them immediately. If the purchaser defaults on payment, we shall be entitled to claim default interest. The default interest rate for the year amounts to 8% above the base rate of the European Central Bank. If the purchaser does not comply with the payment obligations, in particular he not redeem a check or exchange or he stops his payments, or if we become aware of other circumstances, which put in question about his credit status, we are entitled to make the entire remaining debt, even if exchange or checks were taken. In this case, we are entitled additionally to demand prepayment or security services, as well as after a reasonable period of grace to withdraw from the contract or to claim damages for non-performance.
The purchaser is entitled to offset, withholding or reduction, even if complaints or counterclaims are valid only if we have expressly agreed, or if the counterclaims have been legally established or are undisputed.
9. Repurchase of our goods
We are willing to repurchase the delivered goods in exceptional cases. However, this requires an explicit written agreement for each individual case. The purchaser therefore is not entitled to redeliver the goods to us without this written agreement. In fixing of the repurchase price we take under consideration the costs incurred by us for handling and verification, as well as the condition of the returned goods, a discount from the original invoice value. The amount of discount will be set separately for each individual case.
Company and people related data of our customers are stored on computer and processed to meet today’s demands.
When third parties assert against the purchaser in terms of the delivery item and in terms of the infringement of industrial property rights, so the purchaser is commits to inform Agirossi immediately.
12. Severability clause
If any provision in these terms and conditions or any provision of other agreements be or become invalid, this shall not affect the validity of any other provisions or agreements. Instead of the invalid agreements or provisions enter into force as from legal regulations.
13. Applicable law
Exclusively, for these terms and conditions and the whole law relationships the substantive law of the German federal republic applies.
14. Place of performance and jurisdiction
The place of performance for all obligations that arise out of a contractual or non-contractual delivery business is Bad Kreuznach. Jurisdiction for any disputes that arise from business transactions and thus related legal relationships – even in enforcement procedure, in document process and in particular change and check process – is Bad Kreuznach, unless another place of performance and jurisdiction is given due to mandatory statutory provisions.
Amended September 2010