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GTC - General Terms and Conditions

I. Validity

1. All offers, contracts, agreements and deliveries are exclusively subject to our delivery and payment conditions. Deviating conditions of the buyer which we do not expressly recognize in writing, are not binding on us, even if we do not expressly contradict them.

2. Even when individual provisions of the contract or the delivery and payment conditions thereof should prove to be ineffective, the remaining contract remains binding. If necessary, it must be supplemented by a provision which comes closest to what the parties wanted legally and economically with the ineffectual determination.


II. Offer, Documentation, Change Reservation

1. Our written order confirmation is decisive for the scope of delivery. Verbal or subsidiary agreements made by telephone, reservations, modifications or supplements shall only be valid if confirmed by us in writing.

2. The documents relating to offers, such as illustrations, drawings, weights and dimensions are approximate values only and are decisive only as such, unless they are expressly designated as binding. We reserve ownership and copyright to cost estimates, drawings and other documents. They may not be disclosed to third parties. Drawings relating to offers and other documents are to be returned immediately at the expense of the other party when requested, if the order is not granted to us.

3. Changes in the technical execution of the ordered goods are permissible if they are reasonable for the purchaser and if through this no essential change in functionality occurs.

 

III. Prices and terms of payment

1. Our prices are always ex works - setting at the factory -, with domestic transactions plus value-added tax at the respective statutory rate. The cost of insurance, packing and customs fees are charged separately to the purchaser, unless other arrangements have been made. At the same time, we can calculate either a flat rate or the effective costs at our discretion.

2. When the production costs, which we agreed to in our quotation to the buyer at the time the contract was concluded, retroactively becomes significantly more expensive, then we are entitled to a reasonable adaptation of our selling price. A change in production costs within the meaning of sentence 1 exists in particular when our suppliers specify the price for the contract goods or components thereof, when customs duties or other import fees increase or when the exchange rate rises to our detriment against the decisive stipulations of the day of contractual conclusion. A price adjustment is appropriate, when its scope remains within the context of the cost increases in the interim. This we will indicate to the purchaser on request. When the price adjustment leads to a price increase of more than 20% and we do not receive a written request by the purchaser to restrict the price adjustment on the scope of 20% within two weeks, then the purchaser is entitled to withdraw from the contract.

The payments are, unless otherwise specified, to be performed in cash without any deduction, subject to the following conditions, at our paying agent, namely

a)     for deliveries within the country, 1/3 at receipt of the written order confirmation, the rest 15 days after receipt of the invoice, but not later than 30 days after delivery, net cash.

b)     For deliveries abroad, 1/3 when ordering, the balance against credit.

Cheques are accepted for payment only and shall only be considered as effective upon final redemption payment.

Any other payment conditions shall only be binding if a special agreement has been made specifically and in writing.

3. In case of default, delay interest in the amount of 8% above the base interest rate, with a minimum rate of 12% will be calculated. Interest is payable immediately. We reserve us the right to claim for a higher damage on the very same basis as the purchaser who has to prove to this extent that we did not suffer damage or that this damage is significantly lower than the previously determined lump sum. The beginning of the interest is communicated to the purchaser or starts 4 weeks after billing.

4. The withholding of payments due to any counter-claim of the purchaser is just as legally established or based on autonomy of decision as the offsetting with counter-claims.

5. If the financial situation of the purchaser deteriorates to such an extent that the fulfilment of our claims appears to be endangered, then we can immediately demand payment. In the case of orders yet to be executed, we are entitled to demand payment in advance or to demand appropriate security.

6. Partial deliveries are invoiced separately. The above-mentioned conditions shall apply in each case given the situation.

 

IV. Retention of title

1. We reserve the right of ownership on all delivered machines and objects in all cases. Ownership is transferred in each case only after full payment to the purchaser. In the case of goods that the purchaser receives from us in the context of his commercial activity, we reserve the right of ownership until all our claims against the customer arising from the business relationship have been settled. This also applies when individual or all of our claims have been included in a current account, and the balance has been drawn and accredited.

2. The purchaser is entitled to resell the delivered goods as part of his ordinary course of business. In the event of resale, the purchaser thereby relinquishes all claims together with all ancillary rights that he accrued against the buyer or third parties from the resale, regardless of whether the reserved goods were sold during or after processing. The purchaser is authorized to redeem this claim even after the transfer. Our authority to collect the claims ourselves remains unaffected. Of this power, we will not make use, as long as the purchaser properly meets his payment obligations. We can demand that the purchaser discloses our assigned account and the debtors, provide all information necessary for collection, hand over the relevant documents and to inform the debtor of the assignment of debt. If the goods are resold together with other goods not belonging to us, the claim of the purchaser against the customer shall only be the amount of the delivery price as agreed between us and the purchaser.

3. Loading and processing of the reserved goods shall always be affected for us as manufacturer within the meaning of § 950 BGB, but without obliging us. The processed goods are regarded as reserved goods in the sense of these conditions. If goods subject to retention of title are processed with other objects not belonging to us or inseparably mixed, we shall acquire co-ownership of the new item in proportion to the invoice value of the goods subject to retention of title to the invoice value of the other goods at the time of processing and mixing. The resulting co-ownership shall be deemed goods subject to retention of title in the sense of these conditions.

4. If our goods are combined with other movable objects into a single object or inseparably mixed and if the object is regarded as the main item, then we obtain from the purchaser proportionate co-ownership, as far as the main item belongs to the purchaser. For the object emerging through the processing and the connection, the same applies as for the goods subject to retention of title.

5. The purchaser can demand that we release a part of the collateral to the extent that their realizable value exceeds the claims to be secured by more than 10%. The release claim emerges, when the estimated value of the security goods constitutes 150% of the secured claim.

6. The purchaser is obliged to obtain all the machines that are still in our property and other items in good condition and to keep them with the due commercial diligence and to clearly mark them as our property in a clearly visible location.

7. Every regulation that deviates from the above provisions concerning these items without our consent is prohibited to the purchaser as long as reservation of ownership is retained. If the machines and other objects subject to the retention of title or seized by a third party or otherwise utilized, the buyer is obliged to inform us of this immediately in the fastest possible manner, if possible by telephone, telex or facsimile. The purchaser is obliged to send us a possible seizure report, as well as an affidavit as to the identity of the seized items.

8. If the purchaser violates the contract by way of repudiatory conduct, in particular in case of delay in payment, we are entitled to redeem the merchandise. Redeeming the goods does not constitute a breach of contract, unless this has been expressly declared in writing by us. The costs of redemption are borne by the purchaser. After redeeming the goods, we are entitled to sell them; the proceeds from such liabilities less the appropriate related costs shall be credited against the ordering party's liabilities.

9. For export transactions in countries in which the above-mentioned reservation of title is not effective, we reserve the right to secure the proprietary right according to the respective laws and regulations of the receiver country. The purchaser is obliged to participate in this as far as necessary.

 

V. Delivery and delivery time

1. The shipping for domestic deliveries is made ex works from the factory. This also applies for international deliveries, unless agreed otherwise.

2. The buyer has the duty to inform us of the official name of his delivery location/- station in time, and for any false information concerning deliveries, we otherwise assume no responsibility.

3. The declaration of certain delivery periods and delivery dates are subject to the proviso that we in turn have been supplied correctly and in time.

4. The delivery period shall commence, unless otherwise agreed, either after the final technical clarification of the contract or after receipt of the necessary documents concerning order confirmation and payment of the deposit; crucial is the latest date in each case.

5. Delivery times are extended by the period in which the purchaser is in delay with the fulfilment of the essential contractual obligations, in particular the performance of his payment obligations.

6. The delivery time can be extended - also within a delay - in the event of force majeure and all unforeseeable obstacles that have occurred after signing of the contract, which we could not foresee for the duration of the impediment to performance. This also applies when these circumstances occur at our suppliers or their suppliers. Included in the foregoing circumstances are also currency and trade policy measures, strikes and lockouts, official orders or market-related goods and material procurement problems. We communicate the beginning and end of such hindrances with the purchaser as soon as possible. He may require an explanation from us whether we withdraw or deliver according to par. X.1 within a reasonable time. If we do not make a prompt declaration, the purchaser may withdraw without delay.

7. The delivery deadline is considered to have been met, if prior to the expiry of the deadline the delivery item has left the factory or the readiness to dispatch has been notified.

8. To a reasonable extent, we are entitled to make partial deliveries and, if necessary, subsequent deliveries.

 

VI. Transfer of risk

1. With provision of delivery and communication of the delivery readiness, the risk shall pass to the purchaser. This applies also then when the shipment is delayed due to circumstances for which we cannot be held responsible. In the event of failure to give notification of readiness for shipment, then, upon delivery of the goods to the post, the freight forwarder or carrier, at the latest when they leave the factory premises, the risk shall pass to the purchaser.

2. Only on special request of the purchaser and at his expense will we insure the shipment against breakage damage, transport damage and fire damage.

3. With reference to our reservation of ownership, the purchaser has to ensure that the delivery is insured, since we, in the enforcement of our reservation of ownership, use the full value of the delivery and possible damage that could have been incurred to the delivery item in the meantime to calculate repairs at the expense of the buyer.

4. Any returns are always at the expense and risk of the purchaser.

 

VII. Default in acceptance

1. For the duration of such default, we are entitled to store the goods delivered at the expense of the purchaser. We can also make use of a forwarding agency for storage. During the period of delay in acceptance, the buyer has to bear the costs of the emerging storage costs.

2. If, at the end of a reasonable extension period provided to him, the purchaser refuses to accept acceptance or beforehand seriously and finally declares that he does not want to accept, we can withdraw from the contract or demand compensation. As compensation we can claim a lump sum of 25% of the agreed purchase price. We reserve the right to claim for a higher damage amount on the very same basis as the purchaser who has to prove to this extent that no damage emerged or that this damage is significantly lower than the estimated lump sum.

 

VIII. Assembly

1. We recommend that the assembly of machinery and equipment be carried out by our experienced assemblers. For an assembler to carry out an outside job, we calculate, in addition to travel allowances and freight costs for tools, the agreed rates.

2. When assembly or commissioning work is delayed on site without our fault, the buyer has to bear all costs for the waiting time and for further required travels.

3. Apart from that, the usual agreements apply to installation and commissioning.

In any case, when drawing up the guidelines for the assembly and operation in the KernKraft company - the instruction manuals are to be observed.

IX. Claims due to a defect

1. The purchaser shall immediately examine the received goods upon receipt for completeness, as well as for defects and the condition of the goods. Quantity mistakes and recognizable defects are to be communicated immediately to us in writing, not later than, but within 7 working days after receiving the goods; hidden defects within the same period from discovery. For defects, which are not within the time period, the warranty does not apply.

2. Based on public statements by us, the manufacturer or its agents, we are not liable if we did not know the statement or must have known, if the statement had been corrected at the time of the purchase decision, or to the extent in which the purchaser is unable to prove that the statements have influenced his decision to purchase.

3. He will - except in the case of our fault - accept no guarantee for unsuitable, inappropriate, or improper use, faulty assembly or commissioning by the owner or third parties, natural wear and tear, incorrect or negligent treatment, unsuitable equipment, replacement materials, wear, shortcomings in the construction, unsuitable foundation soil, chemical, electrochemical or electrical influences. Sentence 1 also applies when in the setting-up or with the operation is being violated against the KernKraft instruction manual. We are also not liable for defects that reduce the value or soundness of the matter only insignificantly. A minor deficiency exists in particular if the error disappears by itself after a short period in time or when it was eliminated with very insignificant expenditure by the contracting party himself.

4. If the purchaser requests supplementary performance due to a defect, then we can choose between replacement delivery and removal of the deficiency. The right to reduce the purchase price or to withdraw from the contract in case of failure or supplementary performance remains unaffected.

5. Damages and reimbursement of expenses claims remain unaffected by this, unless ruled out by cipher XI.

6. To carry out all repairs, deemed necessary according to our discretion, after replacement deliveries, the purchaser in consultation with us must give the necessary time and opportunity; otherwise we are exempted from the deficiency liability. To have any deficiencies rectified by third parties without our consent at our expense or to table price reduction claims, this right the purchaser is not entitled to.

7. In the framework of the warranty, replaced parts become our property. For replaced parts, the warranty conditions described here apply again.

8. All claims due to a deficiency shall lapse within one year from delivery of the goods at issue. If and so far Analgen are to be set up by us, the warranty period starts from the date of commissioning. However, if the installation or commissioning remains undone through no fault of ours, then the issue remains in the time limit laid down in the foregoing sentence 1. The warranty period shall be extended by the duration of possible rework.

 

X. Right of the supplier to withdraw

1. In the event of force majeure or something else unforeseen by us and other circumstances outside our powers (cipher V.6), we are entitled to withdraw from the contract if these events substantially change the economic significance or the contents of the respective performances or impact our company significantly and lead to the retroactive impossibility to carry out the contractual operation. If we make use of this withdrawal, this will be communicated without delay to the purchaser after having realized the repercussions of the event. The right of withdrawal still applies even if the purchaser had been provided an extension of the delivery period, or if the extension of the delivery period was agreed to.

2. Furthermore, we have a right to withdraw from the contract, when after conclusion of the contract the production cost increases by 20% or more and the buyer has not declared his willingness within 2 weeks of request for a price adjustment of 20% (cipher III.2.). The same applies, when we are not supplied by our suppliers due to reasons for which we are not responsible (cipher V.1).

3. The right to withdraw is also our choice, if the purchaser is in default of payment and the purchaser has made incorrect statements on the facts concerning his creditworthiness, has suspended payments or submitted a sworn disclosure or when insolvency proceedings have been filed on his assets. Our legal rights in the event of default of payment by the customer, apart from that remain unaffected.

4. In the event of cancellation and redemption of delivered goods, we are entitled to compensation for expenses, transfer of the use and impairment. We have the choice to and we are entitled to calculate compensation claims concretely or as lump sum of 15% of the order price. In the case of a lump sum, the purchaser is at liberty to prove that the compensation claims did not occur or at a lower amount.

 

XI. General Limitation of Liability

Claims for damages, regardless on which legal basis, are excluded, unless we can be accused of malicious intent, or we have to avow for own gross negligence, malicious intent or gross negligence by our vicarious agents or the claim for damages results from the breach of contractual obligations. The liability for damages arising from injury to life, body or health as well as liability under the Product Liability Act remains unaffected.

 

XII. Place of Jurisdiction

For all disputes arising from the contractual relationship, the complaint is to be raised in the court, which is responsible for the head office of our company. We are also entitled to table a complaint at the headquarters of the purchaser.

 

XIII. Applicable law

The contractual relationship is governed exclusively by the laws applicable in the Federal Republic of Germany. The application of UN purchasing law (CISG) is excluded

 

XIV. General Information

1. Subsidiary agreements, reservations, modifications or supplements shall only be valid if agreed to in writing.

2. Unless stated otherwise in these delivery and payment conditions or something else had been arranged in the contract, the purchaser is not entitled without our consent to transfer rights from the contract or its delivery and payment conditions to third parties.

3. The delivery and payment terms are a decisive factor in the contract in the German version. This remains the case even if a translation of the delivery and payment terms in another language in addition to the German conditions is being used.



Oil press GmbH & Co. KG                                            Effective: 08/2015