Terms and Conditions of ENCO-Company Ltd. ("GmbH"
under german law)
§1 General
The following conditions apply for
all offers by and contracts of ENCO
GmbH and are also valid for any
subsequent order and delivery.
Deviating terms and conditions of
contract partners do not become
content of ENCO GmbH’s offers or
contracts. An explicit rejection of
such terms and conditions by ENCO
GmbH is not required. Representatives
or sellers of ENCO GmbH are not
entitled to modify or amend the
terms and conditions of ENCO GmbH.
§ 2
Offers and prices
Offers or orders directed at ENCO GmbH shall be deemed adopted unless ENCO GmbH
does not object to such offers and orders in writing within 10 days after their
receipt. The offers by ENCO GmbH are always subject to change. The prices are
valid from the head office of ENCO GmbH including packaging but not postage,
freight and transport packaging. All agreed and net prices are exclusive of VAT.
Unless otherwise agreed, the relevant prices are those of the date of delivery.
§ 3 Terms of Payment
Accounts of ENCO GmbH are generally payable by cash upon delivery. If special
payment agreements have been reached with an individual customer, such customer
will - in case of failure to pay as per agreement - be in default of payment
without reminder. Payments made by the purchaser may be credited by ENCO GmbH
against former arrears. In case of overdue payment a default interest of 4
percent above the current discount rate of the Deutsche Bundesbank will be
raised. If payment in instalments was agreed and the purchaser is in default of
payment, the entire remaining purchasing price as well as all other outstanding
debits of ENCO GmbH will be due with immediate effect. In this case ENCO GmbH is
also entitled to refuse all further deliveries without further notice.
The above paragraph shall apply accordingly if the assets of the purchaser are
subject to composition or bankruptcy proceedings. The assertion of any
further delay damages remains reserved.
§ 4 Delivery
Agreements on delivery dates and deadlines can be made binding and non-binding;
they have to be in writing, even in case of a subsequent amendment. ENCO GmbH is
exempted from its delivery obligation if the company’s suppliers or
manufacturers for operational reasons (bankruptcy, closure, assortment changes
etc.) are not able to deliver. The delivery time is extended to a reasonable
amount in case of force majeure and other unforeseeable circumstances or
circumstances through no fault of the company’s own (eg operational
disturbances, strikes, lockouts, lack of transportation, administrative
intervention, power supply problems, etc.),
although the circumstances of this company ENCO GmbH or the suppliers or
Manufacturers appear to prevent the timely delivery.
ENCO GmbH and the Purchaser shall be entitled to rescind the contract if the
delivery delays for of more than three months. The purchaser may not derive
damage claims from the extension of the delivery period or from the omission of
the delivery obligation. If the shipment is delayed at the request of the
purchaser, the purchaser has to bear the resulting storage costs. If a due
delivery for reasons founded in the sphere of the purchaser is impossible ENCO
GmbH is entitled after the setting and the fruitless expiry of a reasonable time
to dispose of the consignment. Only if the purchaser performs his contractual
advance ENCO GmbH is bound to comply with the delivery time. ENCO GmbH is also entitled
to partial deliveries. Goods delivered by ENCO GmbH have to be accepted even in
case of minor defects.
§ 5
Delivery / Transfer of Risk
The shipment and the possible reshipment of goods to ENCO GmbH have to be
effected at the purchaser’s costs and risk. ENCO GmbH may determine the mode
and the route of shipment at its own discretion Deliveries of goods are only
subject to special transport insurance on the explicit instruction of the
purchaser. The purchaser has to bear the costs for transport packaging.
§ 6
Warranty
Titles resulting from defects or the lack of a warranted characteristic only
arise if the defect or the lack is immediately brought to the attention of ENCO
GmbH in writing and according to the terms of § 377 HGB (German law) and if
furthermore the defect and lack has been proven. Excluding all further titles
ENCO GmbH is liable as follows:
ENCO GmbH reserves the right to remove defects optionally by remedy or
compensation delivery. For this the purchaser is obliged to grant ENCO GmbH a
reasonable amount of time and opportunity, otherwise the obligation to remedy a
defect will not apply. ENCO GmbH has three attempts to comply with its
obligation to remedy a defect. Only thereafter the purchaser is entitled to an
abatement or redhibitory action. No guarantee is given for defects and damages
resulting from the purchaser’s own attempts to a removal of defects, from the
purchaser’s wrong or improper use, from abrasion and lacking or negligent
treatment. An exclusion of warranty also applies to commercial variations of the
supplied goods offered by the prospectus. The agreed payment
obligations remain unaffected from the purchaser’s notice of defect. Where the
company ENCO GmbH provides further benefits by goodwill than the agreed warranty
neither a legal right of the purchaser nor a legal obligation of the ENCO GmbH
is accepted.
§ 7
Retention of Title
ENCO GmbH retains title to goods supplied until all claims arising from the
business relationship with the customer are settled. The purchaser is entitled
to resell only in the course of proper business, with outright payment and under
the retention of title. The purchaser conveys all future claims resulting from
the resale of the delivered goods to ENCO GmbH in order to secure the benefit in
favour of ENCO GmbH. If the
purchaser resells goods together with goods not owned by the ENCO GmbH,
assignment by way of security only occur to the amount the ENCO GmbH has
invoiced the value of goods delivered. The customer or purchaser may not pledge
the retained goods or for security. Any third-party access to the reserved
property title or to any assigned claims must be brought to ENCO GmbH’s
attention. Moreover, the purchaser has to advise the third party on the property
rights of ENCO GmbH. If goods supplied by ENCO GmbH are combined, mixed or
converted with other goods by the purchaser it is deemed as agreed that ENCO
GmbH obtains the ownership at the rate of the value of the delivered goods in
relation to the value of the new produced good. The purchaser in this case has
the obligation to gratuitously store the goods until the expiration of the
co-ownership. In case of a default of payment ENCO GmbH is authorized to take
possession of the goods under retention of title. The assertion of the right to
restitution in relation to the goods under retention of title is not to be
regarded as a withdrawal from the contract. The purchaser is entitled to
assure claims assigned as a precaution to ENCO GmbH as long as he fulfils his
contractual payment obligations. The purchaser is obliged to provide ENCO
GmbH with all information and support necessary for the assertion of its rights
and for this purpose also allows the entering of the purchaser’s premises. In
case of default payment ENCO GmbH is entitled to take possession of the goods
under retention and to resale the goods in the open market. The repossession
does not require a specific reminder or deadline and does not include an implied
redhibitory or cancellation statement; the effectiveness of the sales
remains unaffected. As to the extent permitted by law, claims of the
purchaser against ENCO GmbH going beyond the above-mentioned claims are excluded,
in particular the compensation for damages occurring not from the delivered
goods themselves and claims for damages for the lack of warranted
characteristics. In case of a lack of warranted characteristics the purchaser
may only rescind the contract.
§ 8
Contract adjustment / Cancellation
An adherence to the contract will not be defensible if unforeseen events in
terms of § 4 (3) of the general conditions of ENCO GmbH occur. ENCO GmbH is
entitled to an offer an adjustment of the contract. If a contract adjustment is
economically unreasonable or if the purchaser rejects a contractual adjustment
both contractual partners may resign from the contract. However, the purchaser
is not entitled to reject an only slight adjustment of the contract. ENCO
GmbH may also rescind the contract, if there are reasonable doubts as to the
creditworthiness of the purchaser or if bankruptcy proceedings have been filed
against the assets of the purchaser or judicial or extrajudicial settlement
proceedings have been issued against his assets. In the case of a rescission
from the contract by the ENCO GmbH the amount of 25 percent of the agreed
purchase price is deemed as the agreed compensation and allowance for lost
profit. If the purchaser withdraws from the contract, claims for damages in his
favour are barred.
§ 9 Offsetting /
Retention
The purchaser is only entitled to a set-off right in case of undisputed and
legally established counterclaim. The assertion of a lien is excluded as far as
these terms do not regulate otherwise.
§ 10
Final provisions
In case of individual provisions of this agreement being void, the effectiveness
of the rest of the content will not be concerned. The invalid or void provisions
are replaced by those that are effective and proportionate to the purpose of the
invalid or void provisions.
§ 11
Place of Delivery and Jurisdiction
Place of delivery and jurisdiction is Chemnitz (Germany).
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