General Sales Conditions
Urban GmbH & Co. Maschinenbau KG
§ 1 General Sales Conditions Validity
1. Our General Sales Conditions are valid exclusively. They shall also apply in the event that we make shipments to the Purchaser without reservation having knowledge of any Terms and Conditions of the Purchaser deviating from or conflicting with our Sales Conditions.
Any and all General Terms and Conditions of Business of the Purchaser deviating from ours are not accepted by us. They shall only be part of a contract if their validity for each individual contract is explicitly acknowledged by us. If confirmation letters issued by the Purchaser and considered to make its General Terms and Conditions of Business a part of the contract are not responded to by us, this does not mean an inclusion of the General Terms and Conditions of Business of the Purchaser into the contract, but must be considered as non-acceptance.
A conclusion of a contract shall not fail based on any and all General Terms and Conditions of Business contradicting each other.
Each and every provision of these Conditions shall be valid on its own.
Our Sales Conditions shall only apply to companies within the meaning of § 14, sub-section 1, German Civil Code, as well as legal entities or special funds under public law.
2. To the extent that conflicting General Terms and Conditions of Business correspond with each other, matters concurrently regulated shall apply. Moreover, those parts of our Sales Conditions shall be considered as having been agreed upon if they are not confronted with any conflicting Terms and Conditions of the General Terms and Conditions of Business of the Purchaser. On the other hand, such Terms and Conditions of the General Terms and Conditions of Business of the Purchaser shall not become part of the contract if they do not completely correspond to the contents of our General Terms and Conditions of Business.
For all other cases, non-mandatory law shall apply.
3. These Sales Conditions, as amended, shall also apply to all future commodity and additional delivery contracts entered into between the business partners, without a further inclusion in or reference to the Sales Conditions following a first agreement upon these Sales Conditions being necessary.
4. Following each and every rewording of the General Terms and Conditions of Business on our homepage, www.u-r-b-a-n.com, we shall notify the Customer accordingly and provide a copy of the changed General Terms and Conditions upon request.
5. For any documents accompanied by a translation into a foreign language and referring to a contract, the language of negotiation of which is German, the translation shall be provided for information purposes only. The German wording of the contents of the contract shall prevail and be binding only.
6. All agreements made between us and the Purchaser for the execution of this contract shall be laid down in this contract in writing. Any collateral agreements, subsequent contract changes and guarantees, in particular relating to properties, assurances of properties or the assumption of a procurement risk, must be made in writing.
§ 2 Proposals
1. Proposals submitted by us are subject to change without notice. They represent a request to the Purchaser to submit a binding proposal with the aim of entering into a contract (placement of a purchase order), and therefore they shall not yet be binding on us.
We may accept any purchase orders within a period of four (4) weeks. During this period of time, the Purchaser is bound to its proposal submitted.
2. Any contracts shall only be binding for us if we accept the purchase order by providing a written purchase order acknowledgement.
We shall not be obliged to contradict a purchase order letter of a potential Purchaser referring to such proposal if the contract shall not be entered into.
3. Descriptions and illustrations of our goods and products shown in catalogues, leaflets, circular letters, advertisements and price lists to the extent that these are not part of our proposals are always merely approximations and shall only become part of the contract if this has been referred to explicitly and laid down in the contract in writing.
4. At any time and as a result of technical progress or rationalization, we reserve the right to redesign and modify the contractual item to the extent that these redesigns and modifications are within normal practise and reasonable to be accepted by the Purchaser. The right to deviations of colour, weight and so forth customary in trade shall always be reserved.
5. In the event that the modification of the object of the contract exceeds what is customary in trade and, in addition, is unreasonable to be accepted by the Purchaser, the latter shall be entitled to withdraw from the contract in writing; the Purchaser may execute this right within two (2) weeks following receipt of a corresponding notification by us, however, the Purchaser shall not be entitled to withdraw from the contract at a later period of time on the basis of the corresponding change in the contract.
§ 3 Proposal Costs, Proposal Documents and Protective Rights
1. As a rule, the first proposal prepared by us is free of charge for the Purchaser. Further proposals and drafts shall be free of charge to the extent that the contract to supply becomes and remains valid.
2. We reserve the right to proprietary and copy rights referring to illustrations, drawings, drafts, sketches, calculations and other documents; they must not be made available to any third parties without our written consent. They must neither be copied nor duplicated in any way whatever without our written consent and are to be returned to us without specific request following the execution of the purchase order placed with us.
3. Moulds/dies, samples or tools manufactured by us in the scope of the performance of the contract shall remain our property. We shall not be obliged to hand said moulds/dies, samples or tools over to the Purchaser even if their prices are shown in the contract or invoice separately unless another contractual agreement has explicitly been entered into by the parties concerned.
The copyright to the above moulds/dies, samples or tools shall accrue to us.
4. The Purchaser shall assume liability for infringement of patent and other protective rights owned by third parties for any goods manufactured in accordance with drawings, samples, or other instructions provided by the Purchaser. The Purchaser shall indemnify us against any claims raised.
§ 4 Prices
1. To the extent that nothing else has been agreed upon, all prices are to be understood net „ex works“ excluding the statutory Value Added Tax at the time of invoicing. Additional costs such as packaging, freight, shipping costs, customs duties, assembly, insurance and bank charges are charged separately.
2. Subject to agreement to the contrary, we shall be bound to the agreed prices for a period of six (6) weeks.
If the costs change (in particular with regard to pay settlements or material price changes) following the expiration of the binding period and prior to the delivery of the goods, we shall be entitled to change the agreed prices accordingly.
Evidence of change of costs shall be furnished by us on request.
3. If repeat orders are placed with us, the corresponding prices shall be re-negotiated. If no agreement on prices is achieved, we shall be entitled to fix the prices unilaterally at our own reasonable discretion.
4. To the extent that our invoices do not include any Value Added Tax, in particular because we assume that the delivery is an „intra-Community delivery“ within the meaning of Section 4, No. 1 b in connection with Section 6 a of the Turnover Tax Act, Law, on the basis of the statements made by the Purchaser, and we are additionally charged with the Value Added Tax (Section 6 a IV of the Turnover Tax Act), the Purchaser shall be obliged to pay us the amount charged to us.
This obligation shall remain independent of whether we must pay Value Added Tax, Import Turnover Tax or comparable taxes at home or abroad in addition.
§ 5 Delivery Time, Delivery Periods, Delays and Acts of God
1. Subject to agreement to the contrary a delivery period agreed upon shall be considered to be complied with if the item to be supplied has our works by the expiration of said delivery period or has been handed over to the forwarding agent or if the Purchaser has been advised that the goods are ready for shipment.
2. If the execution of the purchase order depends on documents, approvals to be provided by the Purchaser or clarification of questions which are of material importance for the execution of the purchase order, a delivery period promised or agreed upon by us shall only remain binding for us if the Purchaser has clarified the questions raised or provided the documents or approvals by the beginning of the 8th week prior to the delivery date.
The documents and clarifications to be provided by the Purchaser in accordance with this provision shall be based on the special provisions of the parties included in the contract or result from the nature of the contract concerned.
3. To the extent that nothing else has been agreed upon, the delivery periods shall commence with the mailing of the purchase order acknowledgement.
4. However, the delivery period shall not commence prior to the Purchaser having provided the documents and approvals and having clarified the questions which are of material importance for the execution of the purchase order. The documents and approvals to be provided by the Purchaser and the questions which require clarification by the Purchaser result from the individual contractual agreement of the parties or the nature of the contract.
5. Compliance with the delivery period shall be subject to the performance of all and any payment in advance obligations agreed upon by the Purchaser. Furthermore, the delivery period shall also commence following the performance of those contractual obligations of the Purchaser which, by reference to this provision, shall be established separately in accordance with the individual contract or result from the nature of the contract concerned.
Furthermore, the delivery term shall only commence following the complete and faultless performance of all those contractual obligations of the Purchaser which are of material importance and required for our performance.
6. If we accept a wish for a change of the performance of the contract expressed by the Purchaser following the conclusion of a contract, the delivery dates and periods agreed upon shall cease to be binding for us. We shall do our utmost to advise the Purchaser of new delivery dates for the shipment, commissioning and acceptance of the items to be supplied as soon as possible. However, on the occasion of fixing new delivery dates, we shall be entitled to give priority to other obligations.
7. In the event of delivery date delays caused by the above regulations, a new delivery and assembly period shall only be binding for us following a written approval by us or one of our employees authorized to represent us.
This shall also apply to cases in which the date has ceased to be binding for us on the basis of statutory provisions.
8. The delivery period shall be extended reasonably or the delivery date shall be postponed by a reasonable term in the event of measures taken within the scope of labour disputes, in particular strikes or lock-outs, and if unforeseen obstacles occur which are beyond our control, e.g. interruptions, energy or raw material shortages, traffic disturbances, energy supply difficulties, measures taken on the part of the authorities, sovereign interventions or decrees and such obstacles which can be proven to have had a considerable influence on the completion or shipment of the contractual item. This shall apply also in the event of obstacles caused by Acts of God and if these circumstances occur with our sub-suppliers.
We shall also not be answerable for the above circumstances if they occur during arrears already in existence.
If the interruption lasts for a period of more than three (3) months, all contracting parties shall be entitled to terminate the contract in writing subject to two (2) weeks‘ notice, ruling out claims to damage. If the contract is terminated, we shall be entitled to reimbursement of costs occurred for work carried out already including costs for material used. On request of either contracting party, the other contracting party must declare on expiration of the three (3) months‘ delay period if he/she is prepared to maintain the contract or not.
We shall be obliged to advise the Purchaser as soon as possible in writing if a delay occurs. This shall apply as well if the delay ceases to exist.
9. The right to correct and timely supply to us by sub-suppliers as a prerequisite for our obligation to supply shall always be reserved.
10. If we are answerable for having exceeded the delivery date or non-compliance with the delivery period, the Purchaser may withdraw from the contract if the Purchaser has fixed a period of grace of at least two (2) weeks and if this period of grace has expired unused. The Purchaser may also withdraw from the contract if the prerequisites if § 323, sub-section 2, German Civil Code, have been fulfilled.
The notice of withdrawal or refusal as well as the fixing of a period of grace can only be made in writing.
11. In breaches of duty on our part, we shall only be obliged to pay damages in the event of malice aforethought or gross negligence on our part or on the part of one of our vicarious agents. This shall not apply in the event of commercial fixed-date purchases. The statutory regulations on the onus of proof shall remain unaffected.
§ 6 Delivery on Request
1. We shall be entitled to ship partial deliveries to the extent that these are customary in trade and reasonable to be accepted by the Purchaser. In accordance with our Payment Terms and Conditions, these partial deliveries must always be paid for separately. Following a partial delivery made by us, the Purchaser shall also be entitled to execute its rights in accordance with Para 5, Nos. 10 and 11 of these General Terms and Conditions of Business with regard to the entire contract if the said prerequisites have been fulfilled and the Purchaser has no interest in a partial delivery.
2. If delivery on request has been agreed upon and if the Purchaser fails to meet its obligation to call for said delivery on request, we shall, following the fixing of a reasonable period of grace, be entitled to withdraw from the contract and/or request payment of damages for non-performance of the contract. Our claim to request payment of damages from arrears pursuant to § 280, sub-section 1, sub-section 2, German Civil Code, in combination with § 286, German Civil Code, shall remain unaffected. Alternatively and in this case, we shall be entitled to request payment of the agreed sales price against provision of the total shipment concerned.
3. Goods ordered on request must be completely called for by the Purchaser within three (3) months at the very latest if no other period has been agreed upon.
§ 7 Passage of Risk and Transportation
1. To the extent that nothing else has been agreed upon separately, the goods shall be shipped ex works Memmingen. This shall also apply to partial deliveries.
2. If the goods are shipped to the Purchaser on its request or agreement, the risk of chance destruction and deterioration shall pass to the Purchaser to the extent that this is admissible by law as soon as the goods leave our works, this also applying in the event of partial deliveries. This shall apply independent of the fact whether the goods are shipped from the place of performance or another place and irrespective of who will bear the shipping costs or who has transported the goods to the Purchaser or a forwarding agent.
3. If the goods in accordance with the above provision which shall be shipped to or are collected by the Purchaser are handed over to the forwarding agent or the Purchaser within our works, the risk shall pass to the Purchaser in accordance with the above provision.
4. To the extent that nothing else has been agreed upon, we shall be responsible for the selection of the transportation means and way of transportation without being responsible for the quickest and cheapest transportation possibility. If the Purchaser so wishes, we shall insure the shipment against transportation, storage, and assembly damages in the name and at expense of the Purchaser.
If, based on explicit agreement entered into, the place of business of the Purchaser is both place of performance and place of delivery we shall be entitled to insure the shipment against transportation, storage, and assembly damages in the name and at the expense of the Purchaser.
5. If the transportation is carried out by third parties and the goods remain uninsured, in particular on explicit request of the Purchaser, the goods shall be transported at the Purchaser‘s risk.
6. To the extent that we bear the risk of transportation in accordance with the above provisions, the Purchaser shall be obliged to do its utmost to assist us in settling damages with the insurance company. In particular and immediately after receipt of the shipment, the Purchaser shall be obliged to examine the condition of said shipment, have possible transportation damages established by the competent office (station, post office, or forwarding agent) immediately and transmit this information to us without delay. If the insurance company reduces payments for damages based on insufficient cooperation of the Purchaser on the occasion of the establishment and settlement of damages, we shall be entitled to charge the Purchaser the costs of the damages not paid for by the insurance company.
7. If the goods are ready for shipment and if their shipment or acceptance is delayed for reasons for which we are not answerable, the risk shall pass to the Purchaser following the receipt of the notification of readiness for dispatch. This shall also apply in the event that the Purchaser does not call for goods in time in the event of on call purchase orders placed.