Any documentation which is part of the offer/quotations, such as illustrations, drawings, weights and measurements, shall only be approximate, unless they have been explicitly referred to as binding. interseal (“Seller”) reserves the property rights and copyright in cost estimates, drawings and other documentation. They must not be made available to third parties. The Seller agrees not to make any drawings, designated as confidential by the customer (“Purchaser”) available to third parties without prior approval of the Purchaser. All offers are subject to change and non-binding.
II. Scope of Delivery
The Seller’s written purchase order confirmation defines the scope of delivery. In the event that the Seller fails to submit the order confirmation in time and the Purchaser accepts the Seller’s time-limited offer within the specified time limit, the offer is binding. Additional agreements and amendments must be confirmed in writing by the Seller. To become legally binding, any purchase order resulting from negotiations between the Purchaser and a representative of the Seller, requires written confirmation by the Seller. The Seller accepts no liability for oral promises or written agreements made by any such representative that were not confirmed in writing directly by the Seller. Installation and commissioning of the equipment are not part of the agreement, unless specifically requested by the Purchaser and agreed upon in writing.
The Purchaser is required to check, if the product is suitable for use in the respective medium/equipment and operating environment before putting it into operation. The Seller accepts no liability whatsoever for all damages resulting from non-compliance with these instructions.
III. Price and Payment
1. Unless otherwise specified, prices are ex works exclusive of packaging. All prices are subject to the applicable value added tax (VAT).
Invoices become payable net within 30 days of issue of invoice or with a 2% discount, if paid within 10 days of when the invoice was issued. Any other terms of payment require written agreement.
Both retention of payment or deduction of outstanding payments on the basis of counterclaims not recognized by the Seller are explicitly prohibited.
In the event that the agreement does not expressively contain fixed prices and more than 4 months elapse between the date of confirmation of the order and the actual delivery date, the supplier reserves the right to invoice at the prices valid on the day of delivery.
4. In any event and without exception, all payments are to be made directly to the Seller.
5. If payment is made by bill of exchange, the Seller shall not be held accountable and is free from any liability arising from delays or an act of protest. Discount charges and other costs are payable by the drawee.
In the event of delayed payment, we reserve the right to charge interest at 5% on the Bundesbank’s (German Central Bank’s) applicable discount rate.
IV. Delivery Time
1. The delivery deadline shall commence with the dispatch of the final order confirmation, however, not before issuance of documents, permits and approvals to be submitted by the Purchaser and not before receipt of the agreed down-payment provided this forms an integral part of the agreement.
2. Delivery deadlines shall be considered as met, if prior to deadline expiry the delivery item has left the Seller’s factory or if the Purchaser has been informed that the order is ready for shipment.
3. The delivery period shall be prolonged appropriately in the event of labor disputes, in particular strikes and lock-outs, or any other unforeseen hindrances outside the control of the Seller, to the extent that such obstacles can be proven to have a considerable influence on the planned completion of delivery of the products. The same applies if such circumstances affect the Seller’s sub-contractors. The aforementioned circumstances shall not be held against the supplier, even if they occur during an already existing delay. In serious cases, the Seller shall notify the Purchaser of any such hindrances as soon as possible.
4. If the Purchaser sustains a loss because of a delay to be attributed to the negligence of the Seller, the Purchaser may claim a compensation for delay, at the exclusion of further claims. This compensation will be 0.5% per full week of delay, but in total no more than 5% of the value corresponding to the part of the delivery which, due to the delay, cannot be used in time or as specified in the contract.
5. If the dispatch is delayed upon request of the Purchaser, the Purchaser is liable for the cost of storage at the premises of the Seller, commencing one month after notification of readiness for dispatch. This cost will amount to at least 0.5% of the invoiced amount per month. After expiry of an adequate deadline imposed on the Purchaser, however, the Seller reserves the right to make other suitable dispositions for the goods, and to supply the Purchaser with the requested goods within a suitably extended period of time.
6. Compliance with the delivery deadline shall be subject to the Purchaser’s fulfillment of the contractual obligations.
V. Transfer of Risk and Acceptance
The risk is transferred from Seller to Purchaser no later than with the partial or complete dispatch of the goods to be supplied to the Purchaser, even in case of partial shipments or in case of the supplier owing additional services, such as bearing the costs of shipment or export and installation. At the Purchaser’s request, and at his own expense, the Seller shall insure the shipment(s) against theft, breakage, damage to or loss of goods in transit, fire and water damage as well as other insurable risks.
2. If the dispatch is delayed due to circumstances for which the Purchaser is responsible, the risk is transferred from Seller to Purchaser on the day the goods are ready for shipment; however, the supplier shall be obliged to arrange any insurance cover requested by the Purchaser at the latter’s cost.
The delivered goods shall be accepted by the Purchaser, even if there is evidence of significant deficiencies and without prejudice to the provisions made in Chapter VII.
Partial deliveries are permitted.
Complaints about obvious deficiencies can only be reported within 8 days after receipt of the goods and invoices.
VI. Retention of Title
The supplier expressively retains the title in the delivered goods until receipt of full payment; this equally applies to goods delivered for further processing. In the event of resale of the delivered goods, which is only permitted as part of the regular course of business, and irrespective of whether or not further processing has taken place, the Purchaser’s claim on the purchase price to be paid by the Purchaser’s customer will be transferred to the Seller by way of an advance assignment of the claim on the purchase price claims. This subrogation is limited to the value (purchase price) of the products to be delivered. In the event of a resale of the delivered products, the Purchaser is, in turn, obliged to retain title of the goods from the third party until full settlement of the purchase price.
The Seller is entitled to insure the goods to be delivered at the Purchaser’s cost against theft, breakage, fire, water and other risks, unless the Purchaser provides proven evidence of having arranged such insurance.
The Purchaser must not pledge or transfer the goods by way of security. If the goods are seized, confiscated or otherwise taken possession of by third parties the Purchaser must notify the Seller immediately.
In case of violations of contractual obligations by the Purchaser, particularly in case of delayed payment, the Seller may, subsequent to payment reminders, recover the goods, which the Purchaser is obliged to hand over. An enforcement of the retention of title or the seizure of the delivered goods by the Seller, shall not be regarded as a rescission of the contract, unless the German Instalment Purchase Law (Abzahlungsgesetz) applies.
VII. Liability for Defective Goods
The Seller shall be held responsible for any deficiencies of the delivered goods, including lack of expressively warranted properties, under exclusions of any further claims, and notwithstanding Chapter IX, Paragraph 4, as follows:
All parts which prove to be inoperative or highly deficient within a period of 6 months (3 months in the case of multiple shift operations) after delivery, shall be repaired or replaced, at the Seller’s own discretion and free-of-charge, if the deficiencies are attributable to circumstances – in particular faulty construction or improper workmanship – that occurred prior to the transfer of risk. The Seller shall be notified in writing of any such defects immediately upon their detection. The Seller owns the property rights to any replaced parts. If the delivery, installation/set-up or commissioning is delayed without any fault on the part of the Seller, liability will expire no later than 12 months after the transfer of risk. The Seller’s liability for essential third-party products shall be limited to assigning to the Purchaser all liability claims to which the Seller is entitled against the supplier of the third-party product.
The Purchaser's right to claim for deficiencies shall be limited to 6 months in each and every case, after the date of intimation of the defects in due time, however, at the expiration of the warranty period, at the earliest.
No warranty is given for defects caused by: inadequate or unsuitable use, improper installation or commissioning by the Purchaser or by third parties, natural wear and tear, improper or negligent handling, unsuitable operating materials, replacement materials, faulty construction work, unsuitable foundation soil or chemical, electrochemical or electronic influences insofar as they do not lie within the area of responsibility of the Seller.
In order for the Seller to make repairs and replacement deliveries which appear necessary to the Seller, the Purchaser must provide sufficient time and opportunity in accordance with the Seller to do so; otherwise the Seller is released from liability for defects. Only in an emergency, namely in case of danger to the operational safety and in cases of averting disproportionately grave damage, the Purchaser or a third party may rectify the fault himself; the Seller must be notified of such actions immediately and the Purchaser can claim reimbursement of the necessary costs of repair incurred.
In as much as liability of the Seller has been established, the direct costs of repair or replacement, the costs for spare parts including shipment as well as an adequate reimbursement of the expenses incurred for disassembly and reassembly shall be borne by the Seller. In addition and as the individual case may reasonably demand, the costs for any necessary deployment of the Purchaser’s engineers and fitters will also be borne by the Seller. Any other costs will be borne by the Purchaser.
The warranty period for the replacement part and for the repair work is three months and at least up to the end of the initial warranty period of the delivered goods. The warranty period for the delivered product shall be extended by the time of disruption of operation caused by the required repair work.
Without the Seller’s prior consent, the Seller’s liability shall be null and void for any modifications or repair works improperly executed by the Purchaser or a third party and the ensuing consequences.
Any further claims by the Purchaser are excluded, in particular replacement claims regarding damage sustained by any other product but the product delivered. This exclusion of liability shall not apply, if the damage sustained is due to intent or gross negligence on the part of the proprietor or senior executives. The exclusion is equally not valid for the lack of expressively warranted properties if assuring them is specifically aimed at indemnifying the Purchaser against damage the goods themselves have not sustained.
VIII. Liability for Ancillary Obligations
If the Purchaser is unable to use the goods in accordance with the contract, due to the Seller having omitted or provided faulty advice or proposals, before or after conclusion of the contract, or due to the violation of other contractual ancillary obligations by the Seller, in particular in instructions for the operation and maintenance of the delivered goods, the provisions of Clauses VII and IX shall apply accordingly, excluding any further claims by the Purchaser.
IX. Purchaser's Right to Rescind the Contract
The purchaser shall be entitled to rescind the contract, if the Seller is definitively unable to perform his obligations in full before the transfer of risk has taken place. The same applies in other cases of failure on the part of the Seller. The purchaser shall also be entitled to rescind the contract, if it becomes impossible to dispatch one part of the ordered homogenous objects, and if the Purchaser has a justified interest in declining partial delivery; if this is not the case, the Purchaser shall be entitled to reduce the payment accordingly.
In case of a delivery delay pursuant in Chapter IV, the Purchaser shall be entitled to rescind the contract, if the Seller fails to comply with a new reasonable delivery deadline set by the Purchaser with the express declaration that any delivery made after this new cut-off date shall not be accepted.
Should the failure to comply with the deadline occur during a delay in acceptance or for reasons to be attributed to the Purchaser, the Purchaser remains obliged to make the relevant payment.
Furthermore, the Purchaser is entitled to rescind the contract if, through his own fault, the Seller fails to comply with the reasonable new deadline granted to the Seller for repair or replacement of defective items according to the terms of delivery. In addition, the Purchaser has the right to rescind the contract in any other case of the Seller failing to repair of replace missing or defective items.
Any further claims by the Purchaser are excluded, in particular the right of rescission or termination of the contract, abatement of the purchase price or any other compensations for any damage, including any damage not sustained by the delivered items themselves. This exclusion of liability shall not apply, if the damage sustained is due to intent or gross negligence on the part of the proprietor or senior executives. The exclusion is equally not valid for the lack of expressively warranted properties if assuring them is specifically aimed at indemnifying the Purchaser against damage the goods themselves have not sustained.
X. Sample Delivery
Compliance of the samples delivered with the performance, qualities and properties promised, oblige the Purchaser to accept the Seller’s deliveries. Should the goods be returned, all freight charges, additional charges or expenditures incurred due to specific Purchaser or operations-related requirements as well as reconditioning costs shall be borne by the Purchaser.
XI. Place of Jurisdiction
If the Purchaser is a registered merchant, a legal person under public law or federal special fund under public law, the exclusive jurisdiction for all disputes arising out of or in connection with this agreement shall be with the ordinary courts in Wiesbaden, the registered place of incorporation of the Seller. The Seller is equally entitled to file a lawsuit at the Purchaser’s registered place of incorporation.