General terms and conditions
These Terms of Delivery are valid for all contracts – including future ones – with companies and legal persons according to general law and public law relating to special assets (in the following referred to as „buyer“) concerning supplies and other services, including contracts for work, consulting contracts, contract work, and the supply of acceptable and non-acceptable goods. The purchasing conditions of the buyer shall in no case apply. In cases of doubt the German version applies.
Our offers are not binding. Our catalogue and our price list are part of our offer. Illustrations, dimensions and indications of weight in our printed matter are approximate. We reserve the right to modify models and styles without separate notice. We reserve unrestricted rights of ownership and copyright exploitation with regard to cost estimates, drawings and other documents (referred to in the following as: documents). The documents may only be made accessible to third parties after our approval, and must be returned to us immediately on demand if the order is not placed with us.
3. Custom-made Products
Order quantities of custom-made products may exceed or fall short by 10 %. This applies also to mass-product articles which are specially marked according to buyer’s requirements. We can determine technical or design features that have not been explicitly ordered or specified according to the technical requirements.
In case of a product design stipulated by a customer as well as sales supporting material and/or use of a customer’s brand, the orderer is responsible for the authorised use of the same. The orderer shall be liable towards us for any consequences of a misuse.
4. Prices / Order Quantities
Unless something else has been agreed upon, our price list, valid when the contract is concluded, is determinate. Our prices are DAF Germany if not otherwise agreed. Our quotations are not binding, Value Added Tax will be added to the price at the current legal level. We may choose the mode of transport at our own discretion. We reserve the right to change the ordered numbers of items into packing units.
5. Delivery Times
Statements on delivery or performance periods are approximate. Delivery or performance dates (delivery times) begin with the date of our order confirmation and are valid only on the condition of timely clarification of all details of the order and the timely fulfillment of all commitments of the buyer, e. g. the presentation of all official certificates or presentation of letters of credit. Our obligation to supply is subject to the proviso of correct and timely supplying to us unless we are to blame for the incorrect or delayed supplying. Delivery times have been met when the goods have left our plant by that time or have been reported as ready for delivery. We reserve the right to carry out partial deliveries. If liabilities result due to delayed shipments, paragraph 11 shall apply.
6. Transfer of Risk
In all transactions, including freight prepaid and freight-free deliveries, the risk of loss or damage to the goods shall pass to the buyer at the time where we hand them over to the forwarding agent or to the carrier, at the latest with their departure from our warehouse.
7. Terms of Payment
7.1 Payment and discount periods shall begin with the invoice date, otherwise payments are due immediately without discount. Payment has to be effected that we can dispose of the sum on the due date. If the agreed credit period has been exceeded, we may charge interest payable on the arrears at the rate of 9 percentage points above the ECB’s base rate. Bills of exchange are accepted only upon special agreement, provided they are discountable. The buyer bears any costs for discount or collection.
7.2 A right of retention and a possibility of offset are available to the buyer only insofar as his counterclaims result from the same contractual relationship (in particular claims for defects) and are uncontested or are legally binding.
7.3 If, after conclusion of the contract, buyer becomes in payment arrears with a not inconsiderable amount or if there are other occurrences which point to a considerable deterioration in the payment ability or buyer’s willingness to pay, we may withhold any deliveries until payment or sufficient security has been effected. We may also make all claims payable which are not yet due according to our current relationship with the buyer.
8. Retention of Title
8.1 All goods delivered to the buyer shall remain our property (Reserved Property) until complete payment is made and all of the buyer’s accounts resulting from the business relationship with him, in particular any account balances have been settled. This condition shall apply to any future as well as any conditional claims including accepted notes and such cases where the buyer will affect payments on specifically designated claims.
8.2 With regard to processing or manufacturing of the Reserved Property, we shall be deemed to be manufacturer within the meaning of § 950 BGB (German Civil Code) without committing us in any way. When the reserved goods are processed, combined with and mixed with other goods by the buyer we retain a joint ownership proportionally on the new goods in relationship of the invoice value of the reserved goods and the buyer keeps them for us free of charge
8.3 The buyer may only sell the goods in normal business. Claims resulting from the further sale of the reserved goods will already be ceded to us at this time by way of security together with all securities which the buyer has obtained for his claims. The right to collect claims resulting from resale expires in the case of our retraction, which is possible at the latest by payment arrears. Should the value of the Reserved Property or of any goods or claims superseding the Reserved Property exceed the amount of the secured receivables by more than 50 %, we shall - upon buyer‘s request - release pro tanto collateral at our discretion. Taking back the Reserved Property shall not be regarded as withdrawal from the contract.
9. Industrial Property Rights
Orbis Will reserves all rights of ownership and copyright to all of its patterns and models, illustrations, drawings, calculations and other documents and information as well as commercial and technical details provided to the customer.
10. Claims based on defects
All Orbis Will products are subject to a careful quality control. Defects must be reported immediately in writing, at the latest seven days after delivery. Defects which cannot be discovered within this time in spite of the most careful inspection are to be reported in writing as soon as possible, at the latest within seven days after discovery. We may, upon our discretion, remedy the defect or deliver non-defective goods. In case of transport damages also the person in charge of the transport must be informed. In case of shortfall quantities, buyer has to determine the gross and net weight and has to send us copies of the delivery bill and the transport documents, otherwise his complaint can not be processed. Buyer’s claims in connection with defective goods become time-barred within one year after their delivery.
In case we are supposed to supply according to drawings, specifications, samples etc. provided by the orderer, the orderer assumes the risk of appropriateness for the designated intended purpose. The moment of the transfer of perils is decisive for the contractual condition of goods. We do not warrant for any defects that arise from inapplicable or improper use, faulty assembly and/or operation by the orderer or third parties, wear and tear, inaccurate or careless treatment as well as for consequences of improper changes or overhauling works made by the orderer or third parties. The same applies for defects that reduce the value or applicability of the goods marginally.
11. Liability for Damages
11.1 We can be held responsible for damages incurred because of a violation of contractual and non-contractual obligations or requirements - also for our senior staff and other involved persons - only in the case of wilful intent and gross negligence, and in the case of gross negligence limited to the foreseeable typical contractual damages at the time the contract was concluded; our liability is otherwise also excluded for damages due to defects or their consequential damages.
11.2 These restrictions do not apply to a culpable violation of essential contractual requirements, such as the correct and timely delivery and the duties to advise, protect and take due care for the purpose of enabling the buyer to use the delivered goods in accordance with the contract. Furthermore, these restrictions do not apply to culpably caused damage to life, body and health and also not if and to the extent that we have assumed the guarantee for the quality of the goods delivered, as well as in cases of compelling liability according to the Product Liability Act.
11.3 Should we default on delivery or on performance, buyer may in accordance with Art. 11.1 and 11.2 hereunder request - in addition to the performance - compensation for damages incurred; however in case of slight negligence limited to 5 % of the purchase price of the delivery in default. Buyer’s right to claim damages in lieu of performance in accordance with Art. 11.1 and 11.2 hereunder remains unaffected.
11.4 We only assume expenses associated with subsequent performance insofar as they are appropriate in the individual case, especially in relation to the purchase price of the goods, and under no account are more than 100% of the purchase price. We shall only assume further expenses, for example in connection with the installation or dismantling of the faulty item, in accordance with Paragraphs 11.1 and 11.2 of these Terms and Conditions. Compelling statutory provisions shall not be affected by this.
12. Returned Goods
Apart from our liability for defects, the buyer shall be credited for returned goods only if and insofar as we have previously agreed to such return in writing. Returned goods shall be credited with 80 % of their original price, provided they are resalable and in their original packaging. Otherwise, costs for reconditioning and packaging shall be charged additionally. Any credit will be charged against new deliveries to the buyer only. For security reasons, insulated tools cannot be returned. Customised goods and custom-made products cannot be returned likewise.
13. Place of performance and jurisdiction
Place of Fulfilment, including buyer’s obligations, and Place of Jurisdiction is Ahaus, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).