GENERAL TERMS AND CONDITIONS OF SALE OF EXPRESSO DEUTSCHLAND GMBH

GENERAL TERMS AND CONDITIONS OF SALE OF EXPRESSO DEUTSCHLAND GMBH

1. General

• The supply of our goods and services are subject to the following terms and conditions provided that the Customer is a person acting in the course of his business or is a public authority. Any terms and conditions of the Customer which conflict with or deviate from the following shall not apply except where we have expressly agreed to the same in text form. Our unconditional supply of goods and services or receipt of payment by us shall not be construed as acceptance of conflicting terms and conditions.
• These terms and conditions shall govern all future purchase orders placed by the Customer.
• The goods and services supplied by us are in conformity with the laws and standards in force in Germany. We do not warrant conformity with the laws and standards of other countries (see section 9).
• Insofar as is necessary for the handling of our business we are entitled to store and process the Customer’s data in digital form to the extent permitted by data protection laws (in particular §28 of the German Data Protection Act).

2. Contractual Representations

• Our quotations are without obligation in terms of price, quantity, delivery term and availability.
• Our order acknowledgement in text form is definitive in terms of confirming acceptance of your order, the scope of delivery and delivery date.  

3. Prices, Payment Terms, Set Off

• Except where otherwise agreed our prices are subject to the price list valid at the date of the contract. They are ex works (EXW Incoterms 2010) and do not include packing, freight, customs duties, ancillary import charges, insurance and VAT. VAT shall be charged at the rate current at the date of performance. Assembly, installation or any other services will be charged on a time and material basis.
• Except where otherwise agreed the Customer shall remit payment of the agreed price without deduction within 30 days of the date of invoice. Payments are to be remitted without deduction in the EURO currency. Upon expiry of the payment term the customer shall be deemed in default of payment. Cheques will be accepted on account of performance and bills of exchange by separate agreement.  Any charges and other fees incurred due to payment by bill of exchange shall be for the account of the Customer and immediately due for payment.
• We shall be entitled to demand down payments or payment in advance where the Customer places an initial order, or has its place of business abroad or where we have reason to doubt that the Customer will remit payment on time. Where one of the circumstances aforesaid occurs after the contract has been concluded we shall be entitled to revoke the term of payment agreed and to declare any outstanding amount immediately due for payment.
• The Customer may only set off undisputed counterclaims or counterclaims against which we have no further recourse to appeal; his rights under warranty will not be limited by the aforesaid. The Customer shall only be entitled to rights of retention in so far as these are based on the same legal transaction.

4. Delivery Date

• The commencement of the delivery term quoted shall be subject to clarification of all technical matters and proper and timely performance by the Customer of his obligations.
• Where we fail to deliver upon an agreed delivery date and such failure is caused by an act or omission on our part the Customer shall grant us an extension in writing of not less than two weeks for standard products and six weeks for customised products. Where upon the expiry of the grace period, delivery is still not forthcoming and the Customer desires to rescind the contract or demand damages in lieu of performance, the Customer shall prior thereto set a final and reasonable deadline in text form expressly indicating his intention. The Customer is obliged at our request to declare within a reasonable period whether he shall rescind the contract due to the delay in delivery and/or demand damages in lieu of performance or insist upon performance.
• Where assembly, installation or commissioning is delayed due to reasons for which we are not responsible the Customer shall bear the reasonable cost of any waiting time and additional travel expenses incurred by our service personnel

5. Shipment, Transfer of Risk

• We supply our goods and services „ex works“(EXW Incoterms 2010). The risk of loss, destruction or damage passes to the Customer upon loading at our warehouse or when the goods cannot or are not to be shipped upon notification of their readiness for shipment. This shall also apply where we deliver by installment or where we have assumed other duties to include without limitation transportation or to supply to the delivery location or assembly of the goods.
• If we have been instructed to supply to the delivery location, we reserve the right to select the transport route and the mode of transport. We shall select the packaging, protection aids and / or means of transportation on the basis of our experience at the expense of the Customer. Extra costs incurred by special shipping requirements of the Customer shall be for the account of the Customer. The same applies to increases in freight charges that occur after the contract is concluded, any additional costs for re-routing, warehouse charges etc. except where delivery carriage paid is agreed.
• Supply of goods or services by installment is permitted except where unreasonable for the Customer.
• In relation to make and hold orders approximately the same quantities shall be called off each month except where otherwise agreed in writing. The entire order quantity shall be deemed called off one month after the expiration of the call off deadline, or in the absence thereof twelve (12) months after the contract date. Where the Customer fails to assign goods ordered to a certain delivery within one month after the expiry of the deadline for such assignment, or in the absence of an agreed deadline, within one month of our request for such assignment, we reserve the right to assign the goods at our discretion and deliver the same.

6. Sub-Contractors

• We are entitled to use sub-contractors for performance of our contractual obligations.

7. Force Majeure

• In the event of force majeure, we are entitled to suspend performance of our obligation to deliver. Where there is a considerable change in the circumstances prevalent at the formation of the contract, we reserve the right to rescind the contract. The same shall apply in relation to shortages of energy or raw materials, strikes, governmental decrees, disruption of operations or infrastructure or where, for the above reasons, a sub-supplier fails to supply us properly, on time or at all.

8. Retention of Title

• Goods sold shall remain our property until payment of all claims under the business relationship has been received from the Customer (“Reserved Goods”).
• If the Customer works or processes the Reserved Goods our reservation of title shall be extended to cover the whole of the new article. In the case of processing, combining or mixing with external goods by the Customer we shall acquire title in the fraction that corresponds to the invoice value of our goods to that of the other objects used by the Customer at the time the processing, combining or mixing took place.
• If the Reserved Goods are combined or mixed with a principle good belonging to the Customer, the latter hereby assigns in addition his rights in the new good to us. If the Customer combines or mixes the Reserved Goods with a principle good belonging to a third party against payment, he hereby assigns his claims for payment against the third party to us.
• The Customer may resell Reserved Goods in the framework of due business activities. If the Customer sells such goods without receiving the full purchase price in advance or contemporaneously with the surrender of the item purchased, he shall agree a reservation of title with his customers in accordance with these conditions. The Customer hereby assigns to us his claims under this resale and the rights under the reservation of title agreed. He agrees at our request to notify the assignment to his customers and to provide us with the information required to claim our rights against his customers and to hand over documents. Irrespective of the assignment the Customer shall only be authorised to collect payments under the resale as long as he complies duly with his obligations to us.
• If the value of the securities provided to us exceeds our claims by more than 10 per cent, we undertake to release securities of our choice on demand by the Customer.
• In the event that the above retention of title clauses are void or unenforceable according to the law of the state/country in which the goods are situated, the collateral security which corresponds to the retention of title in that state/country is deemed to be agreed.

9. Customer’s Rights in the case of Defects

• The goods supplied by us correspond to the German regulations and standards currently in force. We give no guarantee that the goods comply with other national regulations. Orders shall be executed in accordance with the agreed technical specifications subject to allowances which are in line with standards in the industry. Where the goods are to be put into operation abroad, it is the responsibility of the Customer to ensure that the goods are in conformity with the relevant legal requirements and standards and where required to make appropriate adaptations.
• The Customer is not entitled to make a claim based on defective delivery or performance where the reduced value or merchantability of the goods delivered or services supplied is nominal.
• Where the goods delivered by us are defective and the Customer has notified us of the same in writing not later than 28 days after the delivery date we shall at our option deliver a replacement or remedy the defect. The Customer shall grant us a reasonable period of not less than 20 working days to carry out the same.
• The Customer is entitled to demand reimbursement of the costs incurred by reason of the replacement delivery or remedying of the defect insofar as such costs are not increased due to the subsequent transportation of the goods delivered to a location other than the original shipment location unless the purpose for which the goods are intended requires the same.
• In the event that we are not in a position to remedy the defect or deliver a replacement the Customer is entitled to rescind the contract or to demand a reasonable reduction in the purchase price. Rescission of the contract is only permissible where the Customer prior thereto sets a final and reasonable deadline in text form expressly indicating his intention.
• The Customer shall retain a statutory right or recourse against us insofar as the Customer has not agreed terms with its customer which exceed the statutory liability for defects.

10. Liability

• Except where otherwise provided below any claim of the Customer for damages other than those claims set out in section 9 aforesaid are hereby excluded irrespective of the legal grounds upon which it is based. Accordingly we do not accept liability for any damage not incurred by the goods themselves nor do we accept any liability for loss of profit or any other pecuniary loss suffered by the Customer. To the extent that our contractual liability is excluded or limited, such exclusion or limitation shall apply in relation to the personal liability of employees, representatives and vicarious agents.
• The aforesaid limitation of liability shall not apply where the damage incurred has been caused by willful default, by gross negligence or breach of guarantee, where personal injury has been suffered or where damages are claimed under the product liability act.
• Where we are in negligent breach of a material term of the contract our liability to compensate damage to property shall be limited to such loss as was typically foreseeable at the time the contract was made. A material term of the contract shall be any term which places the Customer in the legal position provided for under the contract in terms of its content and purpose and any term which must be complied with in order to ensure proper performance of the contract and upon the performance of which the Customer relied or could be reasonably expected to rely.
• Any other liability in damages is hereby excluded.
• Any assignment of the Customer’s claims provided for in section 9 and 10 above is not permitted, insofar as this prohibition is permissible at law.

11. Limitation

• The limitation period for claims based on the supply of defective goods and services (section 9) as well as for claims for damages (section 10) is one year from the date of delivery. The limitation period aforesaid shall not apply in relation to claims based on wilful default, gross negligence, breach of guarantee or to personal injury claims and to claims under product liability laws (section 9 sub-para. 2). The limitation period aforesaid shall further not apply where longer limitation periods are prescribed by law including without limitation claims relating to buildings, defects in construction and rights of recourse. 

12. Product Description

• A description of all of our goods is set out in our „General Technical Data Sheets“, which will be sent to the Customer on request. It is the responsibility of the Customer to test our goods and services as to their suitability for the purpose intended.

13. Jurisdiction, Choice of Law

• For Customers whose principal place of business is situated in the European Union all disputes arising out of these terms and conditions shall be resolved before the courts with jurisdiction located at our principal place of business. We reserve the right to sue the Customer at his principal place of business.
• For Customers whose principal place of business is situated outside the European Union all disputes arising out of these terms and conditions shall be finally settled in accordance with the Rules of the German Institution of Arbitration e.V. (DIS) without recourse to the ordinary courts of law. The place of arbitration shall be Frankfurt am Main, Germany.
• The laws of the Federal Republic of Germany shall govern all the legal relationships between us and the Customer.