General Terms of Delivery
of FUNKE Wärmeaustauscher Apparatebau GmbH
- These General Terms of Delivery exclusively apply to the following ordering parties:
- commercial ordering parties;
- juristic persons under public law or special funds under public law.
- All orders placed with us including change orders or additional orders as well as replacement deliveries shall exclusively be subject to these Terms. The ordering party’s’ deviating general terms and conditions are inapplicable.
II. Offer and order
- Our offers are not binding meaning that contracts will only be binding if acknowledged by us in writing.
- Verbal collateral agreements will only be binding if acknowledged by us in writing. This shall apply mutatis mutandis to additional orders or change orders.
- In case of acknowledged orders we reserve the right to make necessary changes to the manufacture agreed upon for technical reasons, in particular, provided that this does not result in a diminution in value or in changes the ordering party cannot reasonably be expected to accept.
- Our prices are ex works Gronau including loading on the premises but exclusive of packaging. Packaging will be charged separately. Packaging material will not be taken back. Statutory value-added tax shall be added to all prices.
- Transport costs and costs of unloading shall be borne by the ordering party. A transport insurance or other insurances will only be effected at the expense of the ordering party if expressly requested by the ordering party.
- Unless otherwise agreed an assembly is not included in the price.
- If the costs of materials, salaries, fees paid externally, energy prices, taxes or customs duties change after conclusion of the contract and if such change entails an increased market price of the delivery item, we shall be entitled to adjust prices on the basis of such changed market price.
- Periods of delivery or assembly shall only be binding if agreed upon in writing or if confirmed by us in writing. Compliance with these time limits shall be conditional upon clarification of all technical details between the parties and the ordering party’s adherence to all obligations such as the provision of all official documents and/or licenses or down payments. Compliance with delivery periods shall be subject to the services provided to us by our suppliers and commissioned companies in good time.
- Delivery periods are deemed to have been complied with, if until expiration thereof readiness for shipment is communicated or if the delivery item has left the premises.
- Periods of delivery and assembly agreed upon may be extended due to Acts of God, labour disputes, official measures, traffic disruptions or obstructive conditions within the risk area of the ordering party. Such extension also includes lead times needed to resume the services to be provided.
- We are entitled to effect and invoice part deliveries.
- The delivery item shall be accepted by the ordering party even in case of insignificant defects. In such case the ordering party’s claim is limited to the rights arising from product defects on the basis of the provisions of these General Terms of Delivery (commercial duty to notify defects, in particular - par. VI).
V. Reservation of title
- The delivery item shall remain our property until payment in full.
- The use of the delivery object in the ordinary course of business (resale, in particular) is agreed to. If our ownership in the delivery item has expired due to resale, combination or mixing, the ordering party shall assign those purchase price claims and compensation claims to us that were acquired as a result of the use of the delivery item. The ordering party’s purchase price claims and compensation claims shall be assigned to the extent of the amount the ordering party owes to us. Such assignment is accepted by us.
- If as a result of the processing or transformation of the delivery item by the ordering party a new movable object is created the manufacture shall be carried out on our behalf. We shall acquire co-ownership in the new object in proportion of the value of the delivery item to the value of the new object.
- The ordering party is under an obligation to notify us of attachments or other third party seizures regarding the delivery item or the assigned claim and to furnish all details needed to enforce our rights.
VI. Commercial obligation to inspect and report defects
- In commercial business transactions the ordering party shall carefully and conscientiously inspect the delivery item and immediately report possible shortages, a damage in transport or obvious defects in writing. Such report shall be made within a period of eight days upon receipt of the delivery item at the latest.
- If the ordering party installs or processes the delivery item without notifying us of defects (if any), the delivery item is deemed to have been approved unless there is a defect that could not be detected during a careful and conscientious inspection.
- In commercial business transactions defects that could not be detected despite a careful and conscientious inspection shall be reported in writing as soon as they are detected.
- We reserve the right to charge the ordering party’s account with all costs incurred in connection with an inspection resulting from an unfounded complaint.
VII. Claims for defects and claims for damages
- If as a result of a defect we are under an obligation to effect supplementary performance we can, at our discretion, remedy the defect or deliver an item that is free of defects. We can demand a return or retransfer of parts replaced in the course of a supplementary performance.
- If the ordering party refuses a supplementary performance it cannot infer any additional rights or plead a defence or raise objections to our claims.
- Claims for damages asserted by the ordering party on grounds of defects or a violation of contractual obligations shall be excluded. This exclusion of liability shall not apply to claims for damages regarding a damage resulting from an injury to life, body or health and any damage resulting from a wilful or grossly negligent breach of duty or a violation of essential contractual obligations. If an essential contractual obligation is violated, our liability shall be limited to the typical and foreseeable damage. Above provisions shall also apply to claims for damages resulting from tortuous acts besides contractual claims for damages. Our liability under the Product Liability Act shall remain unaffected.
- The limitation period for contractual claims asserted by the ordering party on grounds of defects of the delivery item shall be one year.
VIII. Set-off and defences
- The ordering party shall only set off counterclaims that have become final and unappealable or are undisputed.
- The ordering party shall exercise a right of retention and a right to refuse performance only because of counterclaims that have become final and unappealable or are undisputed.
IX. Terms of payment
- Unless otherwise agreed payments shall be made to us without any deduction as follows:
- 30% down payment within 30 days upon receipt of the acknowledgment of order.
- The residual amount shall be paid within 30 days after performance. The residual amount shall be due even if the ordering party is in default of acceptance of the delivery item; in such case the period for payment shall start at the date of the default of acceptance.
- If documents pertaining to the delivery item can only be supplied subsequently, the ordering party shall only be entitled to retain up to 5% of the total price until a transmission of the documents.
- Cheques or bills of exchange will only be accepted subject to prior agreement and on account of performance. Discount costs and collection costs shall be borne by the ordering party.
- If after conclusion of a contract it becomes apparent that our claim for payment is at risk due to the ordering party’s lacking performance, we shall be entitled to refuse any outstanding performance. There will be no right to refuse performance, if the ordering party effects a down payment of the services still outstanding or provides corresponding security. We are entitled to grant the ordering party a reasonable period of time during which the ordering party is required to effect payment of the outstanding services or provide security. If the deadline expires without results we shall be entitled to rescind the contract.
X. Intellectual property
We hold all exclusive rights of utilization and copyrights in our specimens, construction drawings, plans, estimates, offer documents, catalogues and prospectuses.
XI. Data protection
The ordering party agrees that its data will be stored in our data processing systems and that they will be processed and used by us exclusively for the purpose of processing contracts and complying with all statutory provisions.
XII. Choice of law
In case of contracts involving parties from abroad German law shall apply. The Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
Venue for all disputes shall be the competent court of Gronau. We shall be entitled to sue at the ordering party’s registered office.
FUNKE Wärmeaustauscher Apparatebau GmbH
Zur Dessel 1, 31028 Gronau