T&Cs of UWE EVERS GRAPHICS GmbHValid as of November 2014
- These Standard Terms and Conditions of Sale and Delivery shall apply exclusively to all current and future business relations between UWE EVERS GRAPHICS GMBH and the Customer. The Customer’s standard terms and conditions shall not apply, and are hereby repudiated.
- If any framework agreement exists between the Customer and UWE EVERS GRAPHICS GMBH, these Standard Terms and Conditions of Sale and Delivery shall apply both to the framework agreement and the individual order.
II. Conclusion of contract
- UWE EVERS GRAPHICS GMBH offers are made without obligation and are subject to change. Documents accompanying the offer, such as images, drawings, weights and dimension specifications shall be regarded as being approximate only, unless these have been explicitly declared in writing as binding. Should drawings or technical documents be provided by UWE EVERS GRAPHICS GMBH to the Customer in connection with the deliverable technical object of purchase, these shall remain the property of UWE EVERS GRAPHICS GMBH.
- The Customer shall be bound by its purchase orders. If UWE EVERS GRAPHICS GMBH does not issue any other written confirmation, the delivery or issue of invoice shall be deemed to constitute an order confirmation.
III. Prices, Terms of Payments
- Prices are stated exclusive of value-added tax, shipping, customs duties, postage, packaging, insurance and other such expenses. Brand new machinery shall be billed according to the prices applicable on the day of delivery. Packaging shall be charged at cost price; it cannot be returned.
- Unless a separate agreement has been made, invoices shall be payable immediately without deduction.
- If the Customer is arrears with the payment, the Vendor shall be entitled to changed interest on arrears at the rate of 8
percentage points over the base interest rate. This assertion of specific damages for the arrears remains reserved.
- The Customer may only exercise a right of retention if its counter-claims are uncontested or have been declared res
- If, following the conclusion of the agreement, it becomes apparent that the fulfilment of the payment entitlements is
jeopardised due to the Customer’s inability to service its debts, UWE EVERS GRAPHICS GMBH may demand an advance payment, withhold goods pending delivery or cease continuation of the work. UWE EVERS GRAPHICS GMBH may also exercise the same rights if the Customer is in arrears with the payment for supplies based on the same legal arrangement. This provision shall not affect Section 321 (2) of the German Civil Code (Bürgerliches Gesetzbuch, „BGB“).
- If UWE EVERS GRAPHICS GMBH has undertaken to make the delivery, it shall perform this on behalf of the Customer whilst applying necessary standards of diligence, but shall accept liability for deliberate acts and gross negligence only. The risk shall pass to the Customer once the consignment has been handed over to the individual tasked with performing the transport. UWE EVERS GRAPHICS GMBH shall not be obliged to insure the consignable articles; this obligation rests solely with the Customer. If invoices are issued for partial deliveries, or if products are put into interim storage until collection or consignment, the risk shall pass to the Customer at the time of invoicing.
- If the performance of the service is delayed, then any operational interruptions – either within the operations of UWE EVERS GRAPHICS GMBH or in the operations of a sub-supplier, such as strikes, lock-outs or any instance of force majeure– shall only then justify a cancellation of contract, if it is untenable for the Customer to continue waiting, otherwise the agreed delivery period shall be extended by the period of the delay. However, withdrawal from the contract is only possible four weeks following the emergence of the aforementioned operational interruption at the earliest. UWE EVERS GRAPHICS GMBH shall not be liable in such cases.
- The delivery period shall, as a minimum, be extended by the time period during which the Customer itself is in default of the fulfilment of its contractual duties (e.g. payment in advance). The fulfilment by UWE EVERS GRAPHICS GMBH of the contractually due performance is dependent on the Customer’s fulfilment of its own advance contractual obligations.
- UWE EVERS GRAPHICS GMBH is entitled to make partial deliveries, insofar as these do not fall below the reasonable minimum level.
- The Customer must examine and acknowledge the delivery note, unless other circumstances apply (e.g. delivery by freight forwarder, postal service or parcel service etc.). Any objections must be promptly reported to UWE EVERS GRAPHICS GMBH in writing.
V. Transfer of risk, acceptance
1. The risk shall pass to the Customer upon commencement of loading or dispatch of the object of the delivery, specifically also including where partial deliveries are made or UWE EVERS GRAPHICS GMBH has assumed other services, such as shipping expenses or delivery and assembly and/or commissioning. If the object of the delivery must be formally accepted, the risk shall pass at the time of the acceptance. The acceptance must be promptly performed at the formalacceptance date, alternatively following the deliverer’s notification concerning the readiness for acceptance, which theCustomer may not refuse to perform due to the existence of a non-material fault.
2. If the dispatch or acceptance fails for reasons for which UWE EVERS GRAPHICS GMBH is not responsible, the risk shall pass to the Customer on the day that readiness for dispatch or accept is notified.
- Obvious defects must be reported in writing within a notice period of 2 weeks following receipt of the goods, otherwise claims for material defects are excluded. This time limit is satisfied if the said notification is dispatched within the specified time. If the Customer is an entrepreneur, the provisions of Sections 377 et seqq of the German Commercial Code (Handelsgesetzbuch, „HGB“).
- In the case of a defect in the purchased goods, the subsequent performance shall take place through the elimination of the defect or a substitute delivery. In the event that the subsequent improvement proves unsuccessful, remains outstanding or is delayed for reasons for which we are responsible, the Customer shall be entitled to withdraw from the contract or to demand a diminution of the price.
- Qualities shall only be deemed assured if they are explicitly designated as such in the agreement. Samples, models, dimensions, DIN provisions, service descriptions and other information concerning the nature of the object of the delivery, are to be viewed as specifications rather than guaranteed characteristics.
- Damage caused by external influences, improper set-up and handling, defective servicing or maintenance, corrosion or usual wear and tear, is excluded from the warranty. In the latter situation mentioned above, the warranty in particular does not extend to the abrasion of wearing parts (e.g. all rotating parts, all drive components, tools, etc.). In the case of a sale of a machine, these warranty provisions shall apply on the basis of a single-shift operating cycle.
- Damage caused during transport must be reported immediately to UWE EVERS GRAPHICS GMBH. The Customer must settle the necessary formalities with the shipping agent, particularly all necessary conclusions for the safeguarding of rights of regress vis-à-vis other parties. Objections may not be raised against customary breakage, shrinkage or similar occurrences provided these remain within reasonable levels.
- Any quality defects in a partial delivery shall not entitle the Customer to reject the remainder of the agreed volume, unless the Customer can prove that acceptance of only part of the consignment would be unacceptable for him, having taken the circumstances into account.
- For customers who are entrepreneurs, the limitation period for material defects is one year from the transfer of risk in the case of newly manufactured articles; no warranty whatsoever is given in the case of used articles. For customers who are consumers, the warranty for used articles is limited to one year from the transfer of risk.
- Insofar as UWE EVERS GRAPHICS GMBH is held liable under the rules of supplier’s recourse, the Customer shall beobliged, upon request and without culpable delay, to forward any demand for subsequent performance such as to afford UWE EVERS GRAPHICS GMBH the opportunity to resolve the demand. The statutory provisions shall otherwise apply. Compensation claims shall be subject to the provisions contained in VII.
- Compensation claims shall be regulated in accordance with the statutory provisions insofar as UWE EVERS GRAPHICS GMBH, its representatives or vicarious agents has/have breached any obligations deliberately or by way of gross negligence, or has/have breached any contractually material obligations. In the case of the breach of any obligations by way of slight negligence, the liability of UWE EVERS GRAPHICS GMBH is limited to the foreseeable, direct average damage typical for this type of agreement, and to the payment due for the order in question.
- If the Customer is an entrepreneur, no liability shall be accepted for the slightly negligent breach of non-material contractual obligations.
- The preceding disclaimers do not apply in the event of death or personal injury, or for claims raised under the Product Liability Act.
- If the principal is an entrepreneur, with the exception of the compensation claims described under VII. 3., the warranty service claims and compensation claims shall expire after one year, commencing with the dispatch/delivery of the goods in question. This shall not apply in the event that UWE EVERS GRAPHICS GMBH has acted deceitfully.
VIII. Retention of title, sureties
- UWE EVERS GRAPHICS GMBH retains its title to the delivered goods. Ownership shall be transferred only once the Customer has settled all of its liabilities to UWE EVERS GRAPHICS GMBH in full. In the case of an open account arrangement, this retention of title shall also serve as security for the claim to the balance.
- The Customer shall be entitled to rework, mix, blend or resell the purchased goods during the course of its orderly, normal business activities. Any reworking of the goods subject to a retention of title, shall be performed by the Customer on behalf of UWE EVERS GRAPHICS GMBH, but without this establishing any obligations on the part of UWE EVERS GRAPHICS GMBH. Where the goods subject to retention of title are reworked, mixed or blended with other goods not belonging to UWE EVERS GRAPHICS GMBH, UWE EVERS GRAPHICS GMBH shall then acquire a joint ownership share in the new goods, of a proportion equal to the ratio of the goods supplied by UWE EVERS GRAPHICS GMBH compared to the other goods, in accordance with Sections 947 and 948 of the German Civil Code (Bürgerliches Gesetzbuch, „BGB“).
- If the goods subject to the retention of title are resold by the Customer, it shall here and now assign to UWE EVERS GRAPHICS GMBH its receivables under this purchase agreement. If the case of a reworking, mixing, or blending and subsequent sale, this assignment shall be made in proportion to the ratio of our goods to the other goods forming part of the newly produced article.
- UWE EVERS GRAPHICS GMBH hereby accepts the aforementioned assignments.
- The Customer shall be entitled to collect the assigned receivables on behalf of UWE EVERS GRAPHICS GMBH, provided it contractually fulfils its payment obligations vis-à-vis UWE EVERS GRAPHICS GMBH. This authority may be withdrawn at any time.
- If so demanded by UWE EVERS GRAPHICS GMBH, the Customer shall be obliged to issue the former with all the information and documents necessary in order to assert the assigned rights, and, in particular, to identify the parties liable to settle the assigned claims and to inform these parties of the assignment. UWE EVERS GRAPHICS GMBH is entitled to inform the Customer of the assignment, regardless.
- If the amount of the securities exceeds the securable receivables by more than 20%, UWE EVERS GRAPHICS GMBH shall, if requested by the Customer, release a corresponding amount of these securities; the choice of which securities are released shall rest with UWE EVERS GRAPHICS GMBH.
- If there is any third-party seizure of the goods, or if there is any other such interference endangering the rights of UWE EVERS GRAPHICS GMBH, the Customer must promptly inform UWE EVERS GRAPHICS GMBH of this fact. If the fulfilment, collection or safeguarding of receivables is endangered through breach of the aforementioned obligations or other duties incumbent on the Customer, such as through a settlement agreement for example, UWE EVERS GRAPHICS GMBH shall be entitled to repossess the goods and store them at the risk and cost of the Customer until the complete fulfilment of all its entitlements; this may take place without any cancellation of the agreement.
- UWE EVERS GRAPHICS GMBH shall be entitled, at the Customer’s cost, to insure the object of the delivery against theft, fire, water and other such damage, unless the Customer is able to demonstrate that it has already arranged such insurance.
IX. Place of performance, legal venue, applicable law
- The place of performance is the registered address of UWE EVERS GRAPHICS GMBH. Any disputes arising from business transactions with merchants, legal persons constituted under public law or public law special funds, shall be heard by thecourt with jurisdiction over the registered address of UWE EVERS GRAPHICS GMBH. If the principal’s (be they merchantsor non-merchants) domicile or usual place of residence is unknown at the time of initiating an action, or if the principal has relocated its domicile or usual place of residence to a location outside of the jurisdiction of the Law, it is agreed that the legal venue shall be the court with jurisdiction over the registered address of UWE EVERS GRAPHICS GMBH.
- The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the provisions contained in the United Nations Convention on Contracts for the International Sale of Goods. (CISG)
- If any of the provisions of these Standard Terms and Conditions are or become unenforceable, this shall not mean that these Standard Terms and Conditions are unenforceable in their entirety. The unenforceable provision shall instead then be replaced by the applicable statutory provision.
X. Data protection
- The user’s data stored by UWE EVERS GRAPHICS GMBH shall be treated in a confidential manner. It shall only be disclosed to third parties to the extent necessary for the performance of the agreement, and, with the exception of UWE EVERS GRAPHICS GMBH itself, it shall not be used for advertising or market research purposes.
- The Customer and the billing and service recipients explicitly agree to the collection, processing and use of their personal data. Consent to the storage and processing of personal data may be revoked at any time in writing or by sending an email. UWE EVERS GRAPHICS GMBH will then promptly delete all data no longer required to perform any contracts remaining to be fulfilled at that point in time, or which must be stored for a statutorily defined retention period in accordance with generally accepted accounting principles.
- Personal data will be stored during the offer and order processing stages. The passing on of personal data provided online is prohibited as a rule. As a rule, UWE EVERS GRAPHICS GMBH does not sell or lease personal data to any third parties.
- UWE EVERS GRAPHICS GMBH shall be entitled to communicate personal data to other parties in the following cases: a. the transmission has been agreed, or
b. third parties require it in order to execute the order (e.g. parcel service), or
c. a judicial order or official directive demands it, or
d. this is required for credit protection reasons.
- In accordance with Section 33 of the German Data Protection Act, UWE EVERS GRAPHICS GMBH clearly states that,
within the framework of the business relationship, requisite customer and supplier information shall be processed with the aid of electronic data processing equipment.