Buying conditions for used machines

General Terms and Conditions of Delivery and Purchase for Used Machinery and Equipment

Status April 2011

§ 1 General – Scope of application

Our terms and conditions of delivery and purchase for used machinery and equipment (TAC) shall apply exclusively; we shall not recognise any terms and conditions of the supplier which conflict with or deviate from our TAC unless we have expressly agreed to their validity in writing. Our TAC shall also apply if we accept the supplier’s delivery unconditionally in the knowledge that our supplier’s terms and conditions conflict with or deviate from our TAC . They shall also apply to all future business relations, even if they are not expressly agreed again.

All agreements made between us and the supplier of the used machine or plant for the purpose of executing this contract must be set down in writing in a contract.

Our TAC apply exclusively to entrepreneurs.

§ 2 Offer – Offer documents

The supplier is obliged to confirm our order in writing within a period of ten working days, either by means of a written order confirmation or by issuing a proper written invoice. If the period has elapsed fruitlessly, the order shall be deemed accepted on our terms.

We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties without our express written consent. They shall be used exclusively for any feasibility based on our order; they shall be returned to us unsolicited after completion of the order. They must be kept secret from third parties.

§ 3 Prices – Terms of payment

The price stated in the order is binding. In the absence of a written agreement to the contrary, the price shall include delivery “free domicile” to the address which we shall specify, including packaging. The return of empties and packaging material, unless disposable packaging is used, shall be carriage forward at the supplier’s expense.

The prices are exclusive of the applicable statutory value-added tax.

We can only process invoices if we receive them separately from the delivery of the goods and if they state the order number shown therein – in accordance with the specifications of our order; the supplier is responsible for all consequences resulting from non-compliance with this obligation, unless he can prove that he is not responsible for them.

Unless otherwise agreed in writing, we shall pay the purchase price of invoices immediately upon receipt of money from our customer. A down payment shall only be made if we receive a down payment from our customer and this has been agreed upon.

We shall be fully entitled to the statutory rights of set-off and retention. We are entitled to assign all claims arising from the purchase contract without the consent of the supplier. The supplier is not entitled to assign claims from the contractual relationship to third parties without our prior written consent.

We categorically exclude bank guarantees on our part.

§ 4 Delivery – Delivery time

The deliveries must correspond to the order in terms of execution, scope and division.

Agreed delivery dates are fixed dates; the supplier guarantees the possibility of delivery in due time.

In the event of a delay in delivery, we shall be entitled to the statutory claims. In particular, we shall be entitled to claim damages for delay in addition to performance or damages for non-performance instead of performance or to withdraw from the contract after the fruitless expiry of a reasonable deadline. If we demand damages, the supplier shall have the right to prove to us that he is not responsible for the breach of duty.

The supplier is obliged to inform us immediately if circumstances occur or become apparent to him which indicate that the agreed delivery time cannot be met.

In accordance with the statutory (transport) regulations, the used machine or plant must also be completely free of chips and coolant lubricants (as far as possible also drip-free) and ready for collection at the agreed time. The hydraulic oil must also be completely removed from the machine so that no contamination can occur during or after transport.
Should costs or claims for damages arise from the transport company and/or purchaser of the used machine or system on or after the transport of the used machine or system for the removal of damage and/or contamination caused by escaping cooling lubricants (e.g. hydraulic oil, circulating oil, emulsion, chips etc.), these shall be charged to the supplier in full.

§ 5 Passing of risk – documents

Unless otherwise agreed in writing, the delivery shall be made “free domicile”; the risk shall pass to us upon unloading of the used machine or plant when the delivery has been properly handed over and accepted by our buyer.

The supplier shall be obliged to state our order number exactly on all shipping documents and delivery notes; if he fails to do so, we shall not be responsible for delays in processing.

All documents belonging to the used machine or system must always be supplied; these include operating instructions, manuals, electrical circuit diagrams, current and older software versions on data carriers, etc.

§ 6 Quality

The supplier guarantees that his goods and services have the properties, quality and quality characteristics specified in the order.

At the time of delivery, the condition, appearance and scope of the accessories and equipment of the machine correspond to the condition found during the inspection by VIB and/or the customer/interested party. Any other condition of the used machine or equipment at the time of delivery as found during the inspection shall lead to additional claims which the Supplier shall be obliged to make without delay. This shall apply unless otherwise agreed and mutually accepted in writing by both parties.

The supplier guarantees and warrants compliance with all statutory safety and environmental regulations of the Federal Republic of Germany in accordance with the valid legal situation in the year of manufacture of the used machine or plant in accordance with VDMA.

§ 7 Investigation of defects – liability for defects

The buyer of the second-hand machine or plant is obliged to inspect the goods within a period of ten working days for recognisable deviations in quality and quantity; the complaint is in good time if it is received by us within a period of ten working days, calculated from receipt of the goods or, in the case of hidden defects, from discovery. We shall immediately forward this notification of defects to the supplier.

The statutory claims for defects asserted against us shall pass directly to the supplier; in any case, we shall be entitled to demand from the supplier, at our discretion, either rectification of the defect or delivery of a new item. We expressly reserve the right to claim damages, in particular damages in lieu of performance.

We shall be entitled to remedy the defect ourselves at the supplier’s expense if there is imminent danger or special urgency.

The limitation period shall be 36 months, calculated from the transfer of risk.

§ 8 Product liability – indemnity – liability insurance cover

Insofar as the supplier is responsible for product damage, he shall be obliged to indemnify us upon first request against claims for damages by third parties to the extent that the cause lies within his sphere of control and organisation and he himself is liable externally.

Within the scope of his liability for cases of damage within the meaning of paragraph 1, the supplier is also obliged to reimburse any expenses pursuant to §§ 683, 670 BGB and §§ 830, 840, 426 BGB arising from or in connection with a recall action carried out by us. As far as possible and reasonable, we shall inform the supplier of the content and scope of the recall measures to be carried out and give him the opportunity to comment. Other statutory claims shall remain unaffected.

The supplier undertakes to maintain product liability insurance with a lump sum coverage of € 10 million per personal injury / property damage; if we are entitled to further claims for damages, these shall remain unaffected.

§ 9 Property rights

The supplier guarantees that no rights of third parties within the Federal Republic of Germany and the EU are infringed in connection with his delivery.

If claims are asserted against us by a third party due to the infringement of industrial property rights, the supplier shall be obliged to indemnify us against these claims upon our first written request; we shall not be entitled to make any agreements with the third party – without the consent of the supplier – in particular to conclude a settlement.

The Supplier’s obligation to indemnify shall apply to all expenses necessarily incurred by us as a result of or in connection with claims asserted by a third party.

§ 10 Confidentiality

The supplier is obliged to keep all illustrations, drawings, calculations and other documents and information received strictly confidential. They may only be disclosed to third parties with our express consent. This obligation to maintain secrecy shall also apply after the execution of this contract; it shall expire if and to the extent that the manufacturing knowledge contained in the illustrations, drawings, calculations and other documents provided has become generally known.

§ 11 Place of Jurisdiction – Place of Performance – Applicable Law

Place of performance and exclusive place of jurisdiction for deliveries and payments (including cheque actions) as well as all disputes arising between the parties from contracts concluded between them shall be our place of business, insofar as the supplier is a merchant within the meaning of the German Commercial Code. However, we shall also be entitled to sue the supplier at the place of his place of business.

The law of the Federal Republic of Germany shall apply to the exclusion of the uniform UN Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980.

Should any provision of these General Terms and Conditions be or become invalid or unenforceable, this shall not affect the validity of the TAC.

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