1 Scope of application / Incoterms® 2010
1.1 The following terms and conditions of sale and delivery, which you (hereinafter referred to as "Customer") accept by placing your order, shall apply to the business relationship between the Customer and the company propulsion engineering gmbh, (hereinafter referred to as "Propulsion").
1.2 Customers can only be entrepreneurs. An entrepreneur is any natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity (§ 14 BGB).
1.3 Insofar as the validity of individual clauses of Incoterms® 2010 is agreed between the parties at the time of conclusion of the contract, the clauses of Incoterms® 2010 shall prevail in the event of contradictions between the agreed clauses of Incoterms® 2010, which have thus become part of the contract, and the provisions of these General Terms and Conditions.
2 Conclusion of contract / offer documents
2.1 Offers made by Propulsion are non-binding and subject to change. A contract between Propulsion and the Customer shall not be concluded until Propulsion has confirmed the Customer's order in writing (e-mail suffices).
2.2 The delivery to be made by Propulsion is subject to complete and timely delivery to Propulsion. If the ordered goods are no longer available and/or can only be obtained with unreasonable effort, Propulsion is entitled to withdraw from the contract. In this case Propulsion shall immediately inform the Customer of the unavailability and refund any payments received for the goods concerned. This shall not affect Propulsion's liability for intent or negligence in accordance with the liability regulations as per clause 13 of these General Terms and Conditions. A right of withdrawal shall also exist if Propulsion becomes aware of the objective lack of creditworthiness of the Customer after conclusion of the contract and Propulsion's claims for payment are thereby endangered.
2.3 In the case of planning services provided by Propulsion, Propulsion shall have sole ownership and copyright of the plans, illustrations, drawings, calculations and other documents. If agreed, Propulsion shall grant the Customer a simple, non-exclusive and non-transferable right of use for the contractually intended purpose in return for payment of the fee to be paid for this.
2.4 The language of the contract shall be German, unless otherwise agreed on the basis of our order confirmation.
3 Delivery / deviations / cross-border transactions
3.1 The delivery periods agreed at the time of the order shall apply.
3.2 If delivery of the goods by Propulsion has been agreed, this shall, unless otherwise agreed in writing, only include the one-off delivery of the goods behind the first lockable door at the place of delivery. Delivery shall be made by Propulsion itself and/or by a carrier to be selected by Propulsion to the delivery address specified by the Customer when placing the order, unless otherwise agreed. The Customer shall ensure that the delivery can be carried out without hindrance due to circumstances for which the Customer is responsible. If, for reasons beyond Propulsion's control, it is necessary for the Customer to travel to the place of delivery several times on several dates, any expenses incurred in addition to the one-off delivery shall be invoiced separately in accordance with the agreed delivery charges.
3.3 Propulsion shall be entitled to make partial deliveries for justified reasons, provided that this is reasonable for the Customer. Information provided by Propulsion on the subject matter of the service or delivery (e.g. illustrations, dimensions, weights or other data) shall only be approximate unless usability for the contractually intended purpose requires exact conformity. These details are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations customary in the trade and deviations which represent technical improvements or which are made on the basis of legal regulations and/or the replacement by equivalent products are permissible insofar as the usability for the contractually intended purpose is not impaired. 3.5 The German foreign trade regulations shall apply to all transactions with Propulsion.
4 requests for changes
As long as services have not yet been handed over to the Customer, the Customer is entitled to make written proposals for changes to the contractually agreed service requirements (hereinafter referred to as "change requests"). If the Customer requests changes, Propulsion shall examine these in accordance with the following provisions and submit an offer to the Customer regarding the possible implementation of the change. If the Customer's change requests lead to a change in the processing effort and to a change in the originally agreed deadlines, Propulsion and the Customer shall negotiate a corresponding supplementary contract which takes these changes into account. Without such a new contract Propulsion shall not be entitled to implement the changes. If Propulsion realises that the work to be carried out between the receipt of the request for change and the conclusion of the corresponding supplementary contract is not usable in the event that the change is carried out, Propulsion shall notify the Customer accordingly. If in this case the Customer commissions Propulsion to carry out or check the change request, Propulsion shall be entitled to suspend further processing of the order. Any additional expenses incurred as a result of this shall be borne by the Customer. Performance deadlines shall be extended accordingly.
5 duty to cooperate
The customer shall perform the necessary and reasonable duties to cooperate in a professional, qualitative, temporal and organisational manner in accordance with the plan without special remuneration. The customer's duties to cooperate are primary duties. If the Customer fails to perform the duties of performance and cooperation owed by him in full, properly or on time, any agreed performance dates for Propulsion shall be extended accordingly. The Customer shall in particular
- grant Propulsion access to the premises where work is to be carried out, make available in good time and in sufficient numbers professionally qualified personnel for the necessary tests within the framework of the acceptance procedure,
- provide auxiliary and operating materials such as electricity and compressed air free of charge at Propulsion's request,
- provide the necessary technical documentation
- appoint a competent contact person.
6 Transfer of risk
The risk shall pass to the customer when the goods are handed over to the forwarding agent, carrier or other person designated to carry out the shipment. If the dispatch or handover is delayed at the request of the customer or as a result of a circumstance for which the customer is responsible, the risk shall pass to the customer upon notification of readiness for dispatch.
7 Acceptance of work performance
7.1 Insofar as Propulsion provides work services, Propulsion shall hand over the work produced to the Customer upon completion. If the work is already in the possession of the Customer or within the Customer's reach, Propulsion shall hand over the work in writing.
7.2 The Customer shall be obliged to accept the work produced in accordance with the contract, unless acceptance is excluded due to the nature of the work. Acceptance may not be refused due to minor defects. The Customer shall declare acceptance to Propoulsion in writing by means of an acceptance protocol and shall, upon Propulsion's written request, issue a certificate of acceptance as well as the exact date of acceptance.
7.3 Acceptance shall be deemed to have taken place if the Customer does not accept the work within a reasonable period of time determined by Propulsion, although he is obliged to do so. Acceptance shall also be deemed to have taken place if the Customer has expressly declared acceptance of the contractual service and/or has put the contractual service into use without express written reservation.
7.4 Rejection of acceptance shall only be possible if the service handed over by Propulsion deviates in essential points from the contractually agreed service. In the case of rejection due to existing serious deviations from the contractually owed services, Propulsion shall eliminate the deviations within a reasonable period of time after notification by the Customer. After elimination of the deviations, acceptance shall be carried out again in accordance with the aforementioned provisions.
8 Prices/payment/offsetting and retention rights
8.1 The prices quoted by Propulsion in offers are in principle net prices and do not include the applicable statutory value added tax. Unless otherwise agreed, the prices do not include packaging, freight, postage, customs duties, insurance, assembly and other shipping costs. Unless otherwise stated in the order confirmation, Propulsion's prices shall be "ex works".
8.2 The payment options and modalities agreed upon at the time of conclusion of the contract shall apply, including any advance payment arrangements. Unless otherwise agreed, payments shall be made without deduction immediately upon receipt of the invoice.
8.3 The customer shall only have a right of set-off if his counterclaims are undisputed or have been finally determined by a court of law or are at least ready for a decision. Rights of retention may only be asserted on the basis of counterclaims arising from the same contractual relationship.
8.4 The customer agrees to an invoice transmitted electronically..
9.1 Warranty claims of the customer require that the customer carefully inspects the goods immediately after delivery and notifies Propulsion of any defects in writing immediately after delivery. Defects concealed on delivery must be notified by the customer in writing immediately after their discovery.
9.2 If the Customer is entitled to make a claim on account of a defect, Propulsion shall be entitled at its own discretion to remedy the defect free of charge for the Customer or to deliver defect-free goods as a replacement.
9.3 If the supplementary performance fails or is unreasonable for the Customer or Propulsion refuses the supplementary performance, the Customer shall be entitled in the case of sales contracts to withdraw from the contract, to reduce the remuneration or to demand compensation in lieu of performance or reimbursement of his futile expenses. In the case of contracts for work and services, if subsequent performance fails or is unreasonable for the Customer or Propulsion refuses subsequent performance, the Customer shall be entitled to remedy the defect himself and to demand reimbursement of the necessary expenses, to withdraw from the contract, to reduce the remuneration or to demand damages in lieu of performance or reimbursement of his futile expenses. §13 remains unaffected by this.
9.4 The warranty shall be excluded if the customer has made changes to the goods without Propulsion's express prior written consent, unless the customer can prove that the changes have no connection with the material defect that has occurred and/or do not make it significantly more difficult to analyse the material defect.
9.5 Warranty claims shall become statute-barred within 12 months from the time of the transfer of risk, in the case of work performance from the time of acceptance. This shall not apply in the case of delivery recourse pursuant to §§ 478, 479 of the German Civil Code (BGB) and/or insofar as the relevant defect was fraudulently concealed and/or insofar as Propulsion has assumed special guarantees in the form of a manufacturer's warranty.
9.6 The above shortening of the limitation period shall also not apply to claims for damages for which Propulsion is liable under the provisions of clause 13 below. 9.7 The assignment ofwarranty claims is only possible with the written consent of Propulsion.
10 Product monitoring obligations
The Customer shall comply with all product monitoring and product warning obligations incumbent upon him and shall inform Propulsion immediately in writing if it becomes apparent that a product poses a risk. In the event that Propulsion is held liable by third parties for a breach of product monitoring and/or product warning obligations, and the liability is attributable to a breach of the product monitoring and product warning obligations by the Customer, the Customer shall indemnify Propulsion against all claims by third parties, including any costs of legal defence.
11 product specific features / deviations / trade practices / customer obligation
11.1 Minor deviations of the manufactured and delivered products from the order shall not be considered as defects in the cases described below and therefore cannot be objected to:
- Dimensional deviations within the tolerances of DIN ISO 2768
- Deviations in alignment within the specifications of the machine/coupling manufacturers
- Measurement deviations due to the surface condition of the measured object
- Measurement deviations due to insufficient accessibility / environmental conditions during measurement.
11.2 The customer himself has to check the ordered goods for suitability for his purposes. Recommendations for use as well as suggestions of Propulsion's personnel are, unless expressly agreed otherwise, non-binding and do not constitute guarantees for the usability of the goods for the customer's purposes. They do not exempt the customer from carrying out his own checks on the suitability of the goods for his purposes.
12 retention of title
12.1 Propulsion shall retain title to the goods until all payments arising from the business relationship with the Customer have been received. In case of breach of contract by the customer, especially in case of default of payment, Propulsion shall be entitled to take back the goods. The taking back of the goods by Propulsion shall constitute a withdrawal from the contract. After taking back the goods Propulsion shall be entitled to sell them, the proceeds of sale shall be credited against the Customer's liabilities - less reasonable costs of sale. 12.21 The customer shall be obliged to handle the goods with care; in particular he shall be obliged to insure them adequately at his own expense against damage by fire, water and theft at replacement value.
12.3 In the event of seizure or other interventions by third parties, the Customer shall immediately notify Propulsion in writing so that Propulsion can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse Propulsion for the judicial and extrajudicial costs of an action in accordance with § 771 ZPO, the Customer shall be liable for the loss incurred by Propulsion.
12.4 The Customer shall be entitled to resell the goods in the ordinary course of business; however, at the time of the conclusion of the respective contract the Customer shall already assign to Propulsion all claims to the amount of the final invoice amount (including VAT) of Propulsion's claim accruing to the Customer from the resale against its customers or third parties, irrespective of whether the goods have been resold without or after processing. The Customer shall remain authorised to collect this claim even after the assignment. This shall not affect Propulsion's right to collect the claim itself. However, Propulsion undertakes not to collect the claim as long as the Customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, as long as no application for the institution of composition or insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, Propulsion may demand that the Customer informs Propulsion of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. 12.5 The processing or transformation of the goods by the Customer shall always be carried out on behalf of Propulsion. If the goods are processed with other items not belonging to Propulsion, Propulsion shall acquire co-ownership of the new item in proportion to the value of the goods (final invoice amount, including VAT) to the other processed items at the time of processing. In all other respects the same shall apply to the item created by processing as to the goods delivered under reservation of title. 12.6 If the goods are inseparably mixed with other items not belonging to Propulsion, Propulsion shall acquire co-ownership of the new item in proportion to the value of the goods (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the Customer's item is to be regarded as the main item, it shall be deemed to have been agreed that the Customer shall transfer co-ownership to Propulsion on a pro rata basis. The Customer shall keep the sole ownership or co-ownership thus created in safe custody for Propulsion. 12.7 Propulsion undertakes to release the securities to which Propulsion is entitled at the request of the Customer to the extent that the realisable value of the securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released shall be incumbent upon Propulsion.
13.1 Propulsion shall be liable without limitation for damage caused intentionally or by gross negligence by Propulsion, its employees and vicarious agents, in the event of fraudulent concealment of defects, in the event of acceptance of a guarantee of quality and for damage resulting from injury to life, limb or health.
13.2 Propulsion shall only be liable for other damage if an obligation is breached, the fulfilment of which is essential for the proper performance of the contract and on the observance of which the Contractual Partner may regularly rely (cardinal obligation) and if the damage is typical and foreseeable due to the contractual use of the services. Any liability under the Product Liability Act shall remain unaffected. Any liability of Propulsion beyond the foregoing shall be excluded.
14 Force majeure
Neither party shall be obliged to perform its contractual obligations in the event of and for the duration of force majeure. In particular, the following circumstances shall be considered as force majeure in this sense:
- Fire/explosion/flood for which the contracting party is not responsible,
- war, mutiny, blockade, embargo,
- industrial dispute lasting for more than 6 weeks and not culpably brought about by the party
- technical problems of the Internet beyond the control of either party; this shall not apply if and to the extent that the provider also offers the telecommunication service.
Each party shall immediately notify the other in writing of the occurrence of a case of force majeure and the end thereof.
15 proprietary rights of third parties
The customer warrants that documents, samples, models, templates (hereinafter collectively referred to as "templates") supplied by him do not infringe any third party rights, in particular no industrial property rights, copyrights, trademark rights, utility models, patents etc. (hereinafter collectively referred to as "industrial property rights"). (hereinafter collectively referred to as "Property Rights"). The Customer shall indemnify Propulsion against all claims made by third parties against Propulsion in connection with the use of templates supplied by the Customer due to the infringement of proprietary rights. This includes in particular defence and legal costs as well as other damages. Propulsion shall inform the Customer without delay if third parties assert such claims. The above indemnity agreement shall not apply if the Customer is not at fault.
Insofar as information (in particular documents, samples, models and data) is transferred within the scope of the business relationship, the contractual partners shall keep this information secret and use it exclusively for the fulfilment of the purpose of the contract. This confidentiality agreement does not apply to information which is already publicly known at the time of transfer or which was already known to the contractual partner at the time of receipt or which the contractual partner had already lawfully received from a third party in a legal manner at the time of transfer.
17 Termination of long-term / call-off contracts / price adjustment
17.1 If long-term or call-off contracts are concluded with the customer, they may be terminated with 4 weeks' notice to the end of the month. Notice of termination shall be given in writing.
17.2 Propulsion reserves the right to change the agreed prices and/or their structure at any time in the event of rising costs (production costs, personnel costs, material costs) by giving eight weeks' written notice to the end of the month (change notice period). Should the resulting increase in price amount to more than 5 per cent of the previous price within a contractual year, the customer shall be entitled to terminate the contractual relationship with a notice period of one calendar month to the end of the change notice period.
18 final provisions
18.1 Propulsion shall not recognise any general terms and conditions of business or contract of the Customer that conflict with or deviate from these General Terms and Conditions of Sale and Delivery, unless their validity is expressly agreed in writing. These General Terms and Conditions of Sale and Delivery shall also apply if Propulsion carries out the delivery to the Customer without reservation in the knowledge that the Customer's terms and conditions conflict with or deviate from these Terms and Conditions of Sale.
18.2 In commercial transactions the parties agree that the exclusive place of jurisdiction for all disputes arising in the course of the performance of this contract shall be the registered office of Propulsion.
18.3 The business relationship and all legal issues arising therefrom shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.propulsion engineering gmbh
Office: Gerlingweg 101a, 25335 Elmshorn
Head Office: Ernst-Barlach-Str. 60, 25358 Horst / Holstein