General Terms and Conditions of Sale and Delivery

of Völker GmbH, Alter Flugplatz 34, 49377 Vechta

I. Exclusive application of the terms and conditions of Völker GmbH
These conditions of sale and delivery apply to all business transactions with the purchaser, even if they are not mentioned in later contracts. They apply even if the customer refers to its own terms and conditions, unless this has been expressly agreed otherwise.

II. Delivery period

  1. The delivery period begins with the sending out of the order confirmation but not before the provision by the purchaser of any documents, permits and approvals necessary as well as the receipt of the agreed down payment.

  2. The delivery period is deemed observed if readiness for dispatch is announced or the object has left the company’s headquarters before the expiry of the delivery period.

  3. The delivery period is extended for measures in the context of industrial disputes, in particular strikes and lock-outs, as well as in the occurrence of unforeseen circumstances that are outside the influence of Völker GmbH, e.g. operational disturbance, delay in supply of essential materials, insofar as such impediments have a demonstrably considerable impact on the delivery of the delivery item. This also applies if these circumstances apply to sub-suppliers. The delivery period is extended according to the duration of such measures and obstacles. Völker GmbH are then also not responsible for the aforementioned circumstances when these occur during an already existing delay. We shall inform the purchaser in important cases of the beginning and end of such impediments as soon as possible.

  4. Partial deliveries are permitted within the delivery periods specified by us, provided this does not represent disadvantages for use.

III. Scope of delivery

  1. The scope of delivery is determined by written confirmation of the order by Völker GmbH.

  2. Changes in construction or format that arise based on improvements in technology or on legal requirements are reserved during the delivery period, provided the delivery item is not altered significantly and the changes are reasonable for the purchaser.

IV. Cancellation costs
If the purchaser withdraws a submitted order without justification, Völker GmbH may, without prejudice to the option of claiming higher compensation for the actual loss incurred, demand 15% of the purchase price for the costs incurred in processing the order and lost profit. The onus is on the customer to prove lesser loss.

V. Packaging and shipping
Packaging becomes the property of the purchaser and is invoiced by Völker GmbH. Freight and packaging fees are invoiced separately. The dispatch method chosen is that deemed most suitable.

VI. Acceptance and transfer of risk

  1. The purchaser is obliged to accept the delivery item. Unless agreed otherwise, handover takes place in Vechta. The purchaser is entitled to examine the delivery object at the handover location within fourteen days after receipt of the notice of readiness for delivery or other notification concerning completion. The purchaser is obliged to accept the delivery object within the same time limit, unless he is temporarily prevented from accepting the delivery object through no fault of his own.

  2. If the Customer is behind schedule in accepting the object of delivery by more than fourteen days from receipt of readiness notification, intentionally or due to gross negligence, we are entitled to withdraw from the contract and/or claim damages after stipulation of a further deadline of an additional fourteen days. There is no requirement for setting a further grace period if the purchaser seriously or definitively rejects acceptance or is clearly unable to pay the purchase price within this period.

  3. Risk transfers to the purchaser with acceptance of the delivery object. If the purchaser declares that he will not accept the delivery object, risk of accidental loss or accidental deterioration of the delivery object transfers to the purchaser at the time of refusal.

VII. Price changes
Price changes are permitted if there are more than four months between the conclusion of the contract and the agreed delivery date. If wages, material costs or the market price increases thereafter up until the completion of delivery, we are entitled to increase the price according to the increase in costs. The purchaser is entitled to withdraw only if a price increase considerably exceeds the rise in general cost of living between order and delivery. If the purchaser is a merchant, a legal entity under public law or a special fund under public law, price changes according to the aforementioned arrangement are permitted if there are more than six weeks between the conclusion of the contract and the agreed delivery date.

VIII. Warranty

  1. 1. Völker GmbH assumes liability for defects in the delivered goods in the following manner:
    a) in the case of newly manufactured delivery objects, 12 months for replacement parts.
    b) in the case of pre-owned delivery objects, warranty is excluded.
    c) normal wear and tear and consumables are excluded from warranty in every case.

  2. The warranty period is not extended or renewed by the fulfilment of a warranty.

  3. Völker GmbH is liable for further claims and rights only in cases of intention and gross negligence. Otherwise, liability is excluded.

IX. Reservation of proprietary rights

  1. Völker GmbH reserves title to the delivery objects until payment.

  2. In the case of behaviour of the purchaser that is contrary to the contract, in particular in the case of default of payment, Völker GmbH is entitled to take back the goods after a reminder and the purchaser is obligated to their surrender.

  3. The assertion of the retention of title as well as the seizure of the delivery items by Völker GmbH are not considered withdrawal from the contract, unless the provisions of Sections 491 ff. of the German Civil Code (BGB) apply or this is expressly declared in writing by Völker GmbH.

  4. The purchaser is entitled to resell the delivery objects in the normal course of business; he hereby already assigns Völker GmbH all claims in the amount of the purchase price agreed between Völker GmbH and the purchaser (including VAT) which accrue to the purchaser from the resale, irrespective of whether the delivery objects are resold without or after adaptation. The purchaser is authorised to collect these claims after assignment. The authorisation of Völker GmbH to collect the claims itself are unaffected; however, we undertake to not collect the claims, for as long as the purchaser duly meets his payment obligations and is not in default of payment. If this is the case, however, Völker GmbH can demand that the purchaser informs us of the assigned claims and their debtors, provides all information necessary for their collection, submits all associated documentation and informs the debtors (i.e. the third parties) of the assignment. Völker GmbH reserves the right to assert claims for compensation in the event of non-compliance with these obligations.

  5. The adaptation or transformation of goods by the purchaser is always undertaken on behalf of Völker GmbH. If the delivery objects are processed with other objects not belonging to Völker GmbH, Völker GmbH acquires co-ownership of the new item in the ratio of the value of the delivery object to the other processed objects at the time of processing.

  6. If the delivery objects are inseparably mixed with other objects not belonging to Völker GmbH, Völker GmbH acquires co-ownership of the new item in the ratio of the value of the delivery object to the other mixed objects. The purchaser shall hold co-ownership on behalf of Völker GmbH.

  7. The purchaser may neither pledge the delivered objects nor transfer ownership thereof as security. In the case of pledges and seizure or other disposal by third parties, the purchaser must immediately notify Völker GmbH and provide all information and documents required to protect the company’s rights. Enforcement officers or third parties must be informed of the ownership by Völker GmbH.

  8. Völker GmbH undertakes to release the securities provided to it on request of the purchaser if these exceed the value of the claims secured – to the extent that these have not yet been paid – by more than 20%.

X. Limitation of liability

  1. Völker GmbH bears unlimited liability in the case of intention and gross negligence of its legal representative or vicarious agents.

  2. The liability of Völker GmbH is limited in the case of culpable breach of contractual duties which are essential for the fulfilment of the purposes of the contract to the reasonably foreseeable damages, except in the cases of intention and gross negligence. Liability for indirect damages (consequential damages), such as operational inactivity, delays in production or production failures, as well as for loss of profit are excluded in any case.

  3. Also excluded is Völker GmbH’s liability in the case of breach of contractual obligations of non-essential importance, in the case of simple and slight negligence, as well as for damages do not occur in the delivery object itself. The mandatory provisions of the Product Liability Act shall remain unaffected. Further limitations and exclusion of warranty and liability We provide no guarantee in the following cases:
    • The customer makes alterations to our goods on their own.
    • Our goods are operated improperly by the customer, i.e. failure to follow our instructions.
    • The customer uses sales materials and spare parts not designed for use with our products.
    • Inadequate maintenance by the customer.
    • Normal wear and tear; chemical, electronic, electrical or environmental influences.

XI. Liability in tort
Claims for compensation for damages in tort are excluded, unless the damage was caused intentionally or through gross negligence. This also applies to the actions of Völker GmbH’s vicarious agents or assistants.

XII. Patent rights
Völker GmbH assumes no liability in the event that patent rights or other industrial rights of any kind are affected by the delivered goods or their use.

XIII. Terms of payment

  1. The purchase price and the fees for ancillary services are immediately payable upon delivery of the delivery item.

  2. Payments by cheque or money order are considered to be effected only after redemption as payment. The acceptance of bills of exchange always requires the prior written agreement of Völker GmbH. When accepting bills of exchange, the bank discount and collection charges are calculated in. They must be paid immediately in cash.

  3. We calculate default interest at 8% p.a. above the respective base interest rate of the European Central Bank.

  4. If the purchaser is a merchant, a legal person under public law or a special fund under public law, the retention of payments due to any counter-claims of the purchaser not recognised by us is not permitted, nor is the set-off of such.

XIV. Choice of law
The business relationship is governed solely by the law of the Federal Republic of Germany. References to foreign laws are ineffective. The same applies if the purchaser has his jurisdiction abroad. In particular, the application of the Vienna Convention (CISG) is excluded.

XV. Place of performance and jurisdiction
Place of performance and jurisdiction is Vechta. However, Völker GmbH is also entitled to sue at the registered office of the purchaser.

XVI. Binding effect of the contract
The contract remains binding even in the case of the legal ineffectiveness of individual provisions in its other parts. This does not apply if the adherence to the contract would represent an unreasonable hardship for a contracting party.

XVII. Miscellaneous

  1. The transfer of the rights and obligations of the purchaser arising from the contract concluded with Völker GmbH requires the agreement of Völker GmbH to be effective.

  2. Should a provision be or become void, the validity of the other provisions is unaffected. Vechta,  March 2013