General Terms and Conditions of Vympel with registered headquarters in Germany
1. General conditions.
1.1 These General Terms and Conditions apply for all our deliveries and services, if the customer is an entrepreneur in the sense of Sec. 14 of the German Civil Code (“BGB”) or a legal entity under public law.
1.2 These General Terms and Conditions are only applicable if or to the extent that no other agreements are expressly reached and agreed to in writing.
1.3 Those of the customer’s general terms and conditions which contradict our own are only applicable to the extent that we have explicitly agreed to them in writing. This provision holds true even when we are aware of the customer’s general terms and conditions and delivery is made without reservation.
2.1 Unless otherwise agreed (on a case by case basis), the prices applicable are those which were valid at the time of the closing of the contract, in EURO, based on delivery ex works Germany. Additional services will be charged separately.
2.2 All prices are net prices and do not include sales taxes, which the customer agrees to pay in addition at the respective statutory rate.
2.3 Fees for service and/or maintenance provided by Vympel personnel will be charged according to Vympel’s standard rates. These rates are not subject to reduction or rebate.
3. Delivery, Delayed Delivery, Deadlines, Cancellation of Contract.
3.1 Deliveries are carried out ex works Germany in accordance with Incoterms®
3.2 All prices are net prices and do not include sales taxes, which the customer agrees to pay in addition at the respective statutory rate.
3.3 Delivery dates and delivery periods are nonbinding. Delivery periods are calculated
- Our contractual obligations are subject to the reservation that delivery to us by our suppliers is correct and punctual. In the event of a disruption of supplies due to Force Majeure (forces beyond the control of Vympel), we shall be released from our delivery obligations for the period of interruption. If, due to Force Majeure, we are permanently prevented from fulfilling our obligations, the customer is entitled to terminate the contract.
- In the event of Force Majeure, claims for damages are excluded. Examples of Force Majeure include but are not limited to war, sabotage, strikes and lockouts, natural disasters and geological changes and influences.
3.4 With regard to delivery dates and delivery periods which are not bindingly agreed upon, the customer may, after expiration of these dates, set us a reasonable grace period of no less than four weeks for delivery/performance of our services. We can be deemed to be in default only after this deadline has expired.
3.5 We have a right of retention if the customer is in delay with his obligations, regardless of the legal grounds or legal circumstances of the underlying obligations.
3.6 We reserve the right to fulfill our delivery obligations in full or in part through a company directly or indirectly controlled by VYMPEL.
3.7 We assert the right to make partial deliveries or performance of services so long as this is not an undue burden on the customer. To the extent that they are customary within the trade, excessive or reduced deliveries are permitted and do not confer a right of complaint.
- In the event that Vympel fails to comply with the agreed to terms of the transaction, the customer has the right to cancel the contract if two written notices complaining of our being in breach of said terms and a set grace period for remediation has expired without resolution.
- If the customer is entitled to a contractual or statutory right of cancellation, and if we set a reasonable deadline for the customer to exercise this right, the right of cancellation is lost if the cancellation is not declared before the deadline expires.
3.8 In the event that the customer desires to cancel any or all of the contract for reasons that are independent of Vympel, a cancellation fee will be assessed. Prior to the merchandise being ready delivery, in the case that only a part of the contract is cancelled, a fee will be assessed equal to 10% of the change in the value of the contract or, in the case of a full cancellation, 10% of the original contract. After the merchandise is ready for delivery, a fee will be assessed equal to 20% of the change in the value of the contract or, in the case of a full cancellation, 20% of the original contract.
4. Shipment, Transfer of Risk.
4.1 If delivery is delayed due to the fault of the customer, the risk of accidental deterioration or loss passes to the customer with the notification to the customer that the goods are ready to be shipped (default of acceptance). The customer is responsible for storage costs after the transfer of risk. All further claims we may have, remain unaffected.
4.2 If the customer is in default of acceptance or violates other cooperation obligations negligently or with intent, we are entitled to claim compensation for damages thus incurred, including for any additional expenditures.
5.1 Payment is to be made within 30 calendar days of the invoice date unless otherwise stipulated. Timeliness of payment is determined by receipt of payment to the account specified by us. In case of delayed payment, the statutory regulations apply.
5.2 With the due date of payment, all statutory consequences of delay take effect automatically; no separate reminder to the customer is required.5.3 Vympel reserves the right to impose a penalty for late payment that is calculated at a monthly rate of 2.00% of the original purchase price. The penalty will be assessed on the last day of each month that payment is overdue. Vympel reserves the right to impose the penalty retroactively in cases where the penalty has been suspended initially.
5.4 The customer has rights of retention and set-off only insofar as its claim has been determined by a court or is undisputed. In the case of defective delivery, the counter- rights of the customer, in particular pursuant to Section 8 of these terms, remain unaffected.
5.5 In case of delayed payment, disputed billing, or payment stoppages on the part of the customer, all outstanding claims become due immediately. In all of the aforementioned cases, we also reserve the right to withhold outstanding deliveries against advance payment or securities and, if the advance payment or security is not provided within two weeks, to cancel the contract with no further grace period. All further claims we may have remain unaffected.
6. Reservation of Proprietary Rights.
6.1 We reserve ownership of the delivered goods (“reserved goods”) until complete payment of all current and future claims resulting from the delivery relationship and other existing business relationships with the customer. The customer is obliged to treat the reserved goods with care and to insure these goods at its own cost, in particular against damage by fire, water, or theft.
6.2 Within the context of the customer’s normal course of business, provided it is not in default, it has the right to process the reserved goods, combine or mix them with other goods or sell them, as long as the final disposition of the reserved goods has been agreed to by Vympel. Any other uses of the reserved goods, in particular their use as security or pledging, is prohibited. The resale of reserved goods that have been used for demonstration or testing purposes, or which can be considered to have been used by an end- consumer is strictly prohibited without the express written consent of Vympel.6.3 The customer’s processing or alteration of the reserved goods is always carried out on our behalf. If the reserved goods are mixed during processing with other goods not belonging to us, then we acquire co-ownership of the new goods created in the ratio of the value of the reserved goods (invoice value including sales tax) to the value of the other goods processed, the relevant value being the value of the goods at the time of processing. For the new goods created, the same terms apply as for the reserved goods.
6.4 If the reserved goods are inseparably combined or mixed with other goods not belonging to us, then we acquire co- ownership of the new goods created in the ratio of the value of the reserved goods (invoice value including sales tax) to the value of the other goods processed, the relevant value being that at the time of combining or mixing. If mixing occurs in such a way that the goods of the customer are to be seen as the principal part of the resulting good(s), then it is considered agreed that the customer transfers proportional co-ownership to us. The customer then stores the thus created wholly or co-owned good(s) for us free of charge. If combining occurs in such a way that the goods of the customer or a third party are to be seen as the principal part of the resulting good(s), the statutory regulations apply. The rights of co-ownership arising from the above regulations are considered reserved goods in the sense of Section 6.1. To secure our claims against then customer, the customer also assigns to us any claims which it has vis-à-vis any third parties due to combining the reserved goods with real property.
6.5 The customer may only resell the reserved goods if the conditions set under Section are fulfilled and the claims it has from the resale are transferred to us and were not previously assigned to third parties. If the customer has an obligation of advance performance towards its own customers, then – with regard to these customers – customer must itself reserve the ownership of the goods it supplies to them under the same conditions under which we reserve ownership upon delivery of our reserved goods. Otherwise, the customer is prohibited from reselling the reserved goods.6.6 In the case of customer’s permitted resale of the reserved goods, the following applies: The customer’s claims from the resale of the reserved goods are hereby assigned to us in the amount of the value of the reserved goods (invoice value including sales tax), and we accept this assignment. This applies regardless of whether the reserved goods have been resold with or without further processing. The claims thus assigned to us replace the reserved goods as security for our claims.
6.7 The customer is authorized to collect the assigned claims on our behalf. Our right to collect the claims ourselves remains unaffected. However, we agree to refrain from this as long as the customer duly complies with its obligations towards payment arising from the business with us, customer is not in default, and in particular as long as no petition for insolvency proceedings has been filed against the customer and payments have not been suspended. If one of these cases occurs, the customer must, upon our request, immediately provide all information necessary to collect the claims, provide all applicable documents, and inform the debtors of the assignment.
6.8 If the realizable value of the securities provided to us exceeds the claims to be secured by more than 10%, then, upon the customer’s request, we are obliged to release securities of our choice.
6.9 If the customer violates the contract, in particular by being in delay with its payment, we are authorized to cancel the contract according to the statutory provisions and to demand return of the goods on the basis of the reservation of title and the cancellation of the contract.
7. Customer’s Drawings and Specifications.
The customer is responsible for ensuring that the drawings and specifications it provides are correct in terms of content and technical details and that they are free from third-party rights.
8.1 We warrant that the supplied goods do not have a defect at the time of the transfer of risk. With regard to the infringement of any third party’s proprietary rights, the regulations under Section 10 apply.
Warranty coverage is limited to those devices that are initially commissioned and started up by specially trained and authorized Vympel personnel. Inaddition, any extension of warranty coverage beyond 24 months is dependent on the yearly inspection and maintenance of supplied goods by authorized Vympel personnel. In individual cases, start up and maintenance services may be carried out by specially trained technical personnel who are not directly employed by Vympel. However, only Vympel can authorize such an arrangement and Vympel’s official written confirmation of this authorization must be presented with any subsequent claim against warranty.
Technical services may be contracted through authorized Vympel agents. Such services will be delivered by Vympel personnel, or authorized Vympel-trained personnel. Costs for the training and preparation of service personnel not directly employed by Vympel are the responsibility of the contracting agent. Authorized Vympel agents include, but are not limited to, distributors, dealers, sales agents, and cooperative partners.
Any specific agreement made with regard to the supplied goods is the primary point of reference/standard for determining the existence of a defect. Specifications or technical delivery conditions that are given to the customer before placement of the order, or were included in the contract in a comparable way as these General Terms of Delivery and Payment, constitute an agreement concerning the properties of the goods (the “Agreed Quality”). The descriptions contained therein do not constitute a quality guarantee. Minor deviations from the Agreed Quality are not defects. Insofar as no limit for deviations was explicitly agreed, deviations that are customary in the trade are permitted in any case. Furthermore, warranty claims do not exist in the case of natural wear and tear.