GENERAL TERMS AND CONDITIONS OF SALE; DELIVERY AND PAYMENT
A. General Provisions
- All offers, sales, deliveries and services of VIGOR GmbH (hereinafter referred to as “VIGOR”) are based exclusively on the following general terms and conditions (hereinafter referred to as “Terms and Conditions”). We herewith explicitly oppose the purchaser’s terms and conditions in the sense of § 305 et seq., German Civil Code (Bürgerliches Gesetzbuch – BGB).
- The following Terms and Conditions are an integral part of all contracts concluded with VIGOR’s contractual partners for its deliveries and services. Agreement is given to the Terms and Conditions when the order is placed or the delivery accepted. The Terms and Conditions do not apply to relations with consumers in the sense of § 13, BGB.
- Modifications and/or supplements to these Terms and Conditions are only valid if written agreement thereto has been given.
- “Purchaser” refers to the contractual partner irrespective of the nature of the contract.
- To the extent that nothing else is agreed in these Terms and Conditions, the determining factor for the interpretation of the various terms of delivery is the INCOTERMS® 2010.
II. Offers and Conclusion of Contracts
- VIGOR offers are subject to confirmation and without obligation. Requests can be accepted by VIGOR within thirty (30) days. The Purchaser is thus bound to its request for at least this period. A request is deemed as accepted when VIGOR has confirmed it in writing to the Purchaser. The delivery and invoice are both deemed confirmation of an order.
- VIGOR reserves the right to ownership and the copyright to the documentation pertaining to the offer (illustrations, drawings, descriptions and the like); third parties may only obtain access to the documentation if it is intended to be circulated. Otherwise it should be returned to VIGOR upon request.
- The information, drawings, illustrations, technical data, weights, measurements and descriptions of services included in brochures, catalogues, circulars, advertisements, price lists or in the documentation pertaining to the offer are only intended to convey a general idea of the products described. They do not include any explanations, other assurances or guarantees and shall not become an integral part of the contract. Common practice deviations, or modifications which are made due to legal regulations or as technical improvements, are permitted insofar as they do not adversely affect the contractually intended use.
- Prices are net cash plus VAT of the respective statutory amount as well as freight ex works or warehouse and do not include outer packaging, postage and insurance.
- If the Purchaser’s value of consignment exceeds a value of 750 euros net, i.e. excluding VAT, the delivery shall be made with carriage paid to the Purchaser’s address within Germany and without charging for the standard trade packaging. This applies exclusively to deliveries to the Purchaser's address. For different delivery addresses, the prices listed under Point III shall apply. 1.
IV. Payment Conditions
- As far as nothing else is agreed in writing, the invoices are due for full payment in euros within 30 days as of the invoice date irrespective of any delays in delivery for which VIGOR is responsible.<br/>The receipt by VIGOR shall determine the date of payment.
- 2 As long as purchase price receivables based on older invoices which are due for payment are still unsettled, it is not permitted to make a cash discount deduction in any case.
- If special agreements are the basis, VIGOR shall only accept as payment checks and bills of exchange which are rediscountable with the Bundesbank (German central bank).
- Bills of exchange or checks shall be credited subject to receipt and with the value of the date when VIGOR can ultimately dispose over the proceeds. The Purchaser shall bear all costs and disbursements which result from this.
- If the Purchaser does not adhere to the payment targets stated under A. IV. 1. the respective outstanding amount shall bear interest of 8% above the base rate pursuant to § 247, BGB, to be paid by the Purchaser. The right to assert further claims due to the delay is hereby unaffected.
- VIGOR’s entire receivables shall become due immediately irrespective of the duration of accepted and credited bills of exchange if these payment conditions are not observed or if VIGOR becomes aware of these circumstances. in the sense of A.VI.9. VIGOR reserves the right to rescind from contracts or to demand compensation instead of payment after the deadline has expired without any result. If VIGOR exercises its right of rescission, it can satisfy its receivables from a private sale of the goods which are subject to the reservation of title and have been taken back.
- The retention of payments or offsetting with the Purchaser’s counterclaims is only permitted if the counterclaims are undisputed or have become res judicata.
- With the exception of pecuniary claims the Purchaser cannot assign or transfer the rights and obligations arising from these Terms and Conditions and/or from the contracts covered by them without VIGOR’s prior written consent.
- If VIGOR receives information about a deterioration of the Purchaser’s financial circumstances or if VIGOR learns that the Purchaser is otherwise acting contrary to the contract, VIGOR is entitled to request advance payments or that security be provided before rendering still outstanding deliveries or services.
V. Securities / Retention of title
- The ownership of the goods is transferred under the condition precedent of full payment of the purchase price. If there is no advance payment or concurrent cash transaction to be processed, VIGOR additionally reserves the right to ownership of all delivered goods (reserved property) until the full payment of all current or future amounts resulting from the business relationship, particularly payment of the respective balance of receivables, which is owed to VIGOR by the Purchaser. This also applies if payments are made for specifically designated receivables.
- The Purchaser may only sell reserved property during the course of normal business and as long as it is not behind with the payment of outstanding receivables towards VIGOR. The Purchaser herewith assigns in advance to VIGOR all receivables against third parties arising from such sales in the amount of the respective invoice value for the resold reserved property, including the statutory VAT. VIGOR shall accept this assignment.
- If the Purchaser sells the reserved property together with other objects not delivered by VIGOR, the assignment of the receivables from the sale shall apply only in the amount of the invoiced value of the reserved property, which value is stated in the VIGOR invoices.
- The Purchaser is entitled to collect the receivables from the sale to third parties.
- VIGOR is entitled to revoke the authorisation to collect receivables given in A. V. 4 if the Purchaser defaults on its payments, as well as in the event of a significant decline in the Purchaser's financial situation. Without the need for such a revocation, the collection authority expires with the placement of a request for insolvency proceedings or with the assignment of security measures in an insolvency proceeding. Upon request the Purchaser must inform VIGOR of the assigned receivables and their debtors, and provide the documentation necessary for the collection of the receivables. Upon special request by VIGOR the Purchaser shall inform the affected third-party debtors of the assignments having taken place.
- Insofar as the Purchaser becomes entitled to claims against insurance companies or other third parties due to the reserved property deteriorating or becoming damaged, lost or destroyed, or for other reasons, these claims shall also be assigned instead of the sales proceeds to VIGOR, in advance and to the same extent, and with all ancillary rights.
- Rights arising from the retention of title and from all the special forms stipulated in these conditions are also deemed as contingent liabilities, which VIGOR has accepted in the Purchaser’s interest, until the title is transferred in full.
- The Purchaser may not make or allow dispositions regarding the reserved property which do not correspond to the above conditions.
- The Purchaser must inform VIGOR in writing and without undue delay of seizures and other risks to VIGOR’s rights arising from third parties, and give information necessary for legal action to be brought by a third party claiming title to the seized property in accordance with §771, Code of Civil Procedure (Zivilprozessordnung – ZPO). The Purchaser shall be liable if VIGOR suffers a loss because a third party cannot pay the legal and out-of-court costs of legal action which it must reimburse to VIGOR pursuant to § 771, ZPO.
- VIGOR is entitled, at the Purchaser’s expense, to insure the reserved property against fire, water and theft unless the Purchaser can demonstrate that it has taken out such insurance itself.
- If the value of the security, including offset possibilities, exceeds the secured receivables by more than 10 % for an extended period of time, VIGOR is obliged upon the Purchaser’s request to release securities of VIGOR’s choice.
VI. Return of Goods
- Goods can only be returned with VIGOR’s prior written consent and if they are up-to-date, in their original packaging and can be resold. Return delivery must be free of charge.<br/>A credit note for goods in their original packaging and suitable for resale shall be issued at 80% of the invoiced price. Costs for any reprocessing or new packaging shall be deducted additionally. The credit note can only be credited with new deliveries of goods. As a general principle, returns of insulated tools cannot be accepted for safety reasons.
B. Deliveries, Warranty, Liability
I. Delivery Periods, Delivery Dates
- The delivery periods and dates stated by VIGOR are not binding.
- The delivery periods commence with the receipt of the order confirmation but not before all the details of the order have been completely clarified and any necessary national and international official certificates have been obtained. The delivery periods and dates refer to the time of shipment, i.e. dispatch ex works or warehouse. These are also deemed to have been observed with the notification that the goods are ready to be dispatched, even if, through no fault of VIGOR's, they cannot be dispatched on time.
- Without influencing VIGOR’s rights arising from the Purchaser’s default, the agreed delivery period is extended by the time during which the Purchaser defaults on its obligations arising from this or other business plus an appropriate start-up period.
- Partial deliveries are permitted as far as the Purchaser can be reasonably expected to accept them. Each partial delivery is considered an independent business transaction.
- VIGOR is entitled to withhold outstanding deliveries if the Purchaser does not fulfil its payment obligations or if there is reasonable concern that it cannot fulfil such an obligation (right of retention). VIGOR reserves the right in any case to make deliveries in return for advance payment or cash on delivery.
II. Special Conditions for Goods on Recall
- For business with continuous deliveries VIGOR must receive release orders and type categories for roughly the same amount per month. If the release orders or type categories are not given on time, VIGOR is entitled, after the deadline has expired without any result, to categorise and deliver the goods itself, or to rescind from the outstanding part of the transaction and demand compensation instead of payment.
III. Force majeure and other obstacles to delivery
- Force majeure events, such as strike, lockout, mobilisation, war, blockade, export and import bans, raw material and fuel shortages, fire and other circumstances which are not the fault of VIGOR shall entitle VIGOR to postpone the delivery for the duration of the obstacle and an appropriate start-up time. This applies irrespective of whether the above-mentioned circumstances occur at VIGOR, the preliminary supplier or one of the subcontractors.
- The Purchaser can demand an explanation from VIGOR as to whether delivery will take place within an appropriate period or whether a rescission from the contract should be considered. If VIGOR does not make a declaration within an appropriate deadline, the Purchaser can itself rescind from the as yet unfulfilled part of the delivery.
- The declaration made by the preliminary supplier or the sub-contractor to VIGOR regarding circumstances which have occurred at their premises pursuant to B.III. 1. are deemed as sufficient proof that VIGOR is not responsible for the hindrance of the delivery.
IV. Dispatch and Passing of Risk
- The forwarding agent or freight carrier shall be determined by VIGOR. In the absence of any special agreement, the choice of route and means of transport is entrusted to VIGOR, excluding any liability.
- Release orders must be given without undue delay for goods which have been notified as ready for dispatch on the agreed date. VIGOR is otherwise entitled to store them as it sees fit at the Purchaser’s expense and risk, and invoice them as delivered ex works or warehouse. The means of transport must be unloaded immediately if the delivery is made with carriage paid. The costs for any periods of delay shall always be borne by the Purchaser.
- The risk shall in any case – including a confiscation – pass to the Purchaser when the goods are handed over to the forwarding agent or freight carrier or at the latest when the goods leave the plant or warehouse – e.g. even if the delivery is made with carriage paid.
- The Purchaser is obliged to examine the goods for damage and defects immediately after receipt. Defects and incorrect quantities of deliveries must be reported to VIGOR no later than 7 days after receipt of the goods, as otherwise the goods will be deemed to have been approved. The Purchaser must immediately notify the responsible shipping agent,, transport/freight company or post office, as well as VIGOR, of any transport damage and obvious defects.
- Premature deliveries which the Purchaser can be reasonably expected to accept and excess or short deliveries which are customary in the trade are permitted.
- The requested amount does not have to be reached or may be exceeded by up to 10 % for custom-made products. Also considered as custom-made products are mass-produced articles which the Purchaser explicitly wishes to have a special designation. The Purchaser is not entitled to a right of rescission. The goods cannot be returned to VIGOR.
V. Defects and Warranty
- At the discretion of VIGOR, all goods will be repaired free of charge, re-delivered or performed again (subsequent performance) if they (irrespective of the length of operation) display defects within the limitation period, the cause of which was already present at the time when risk was transferred.
- VIGOR must always be first granted an opportunity for subsequent fulfillment pursuant to B.V.1. within an appropriate deadline.
- Claims due to liability for defects do not exist in the event of only minor deviation from the agreed characteristics, in the event of only minor impairment of usability, in the event of natural wear or damage which emerges after the transfer of risk due to incorrect or negligent handling or any other particular external influences.
- Statutory recourse claims by the Purchaser against VIGOR only exist as far as the Purchaser has not come to any understanding with its customer which exceeds the statutory claims due to liability for defects.
- The reimbursement pursuant to B.V.4. above is limited to the cost price (e.g. transport and material costs) incurred by the Purchaser but not its profit margin towards the customer.
- Further claims by the Purchaser due to material defects, which are asserted against VIGOR and its vicarious agents, are excluded subject to the regulation in B.VI. of these Terms and Conditions.
- Claims based on liability for defects have a statute of limitations of one year as of delivery.
- Claims by the Purchaser based on damage arising from the violation of secondary obligations in a purchase contract, which do not constitute a defect, also have a statute of limitations of one year.
- VIGOR vouches that the goods supplied by VIGOR are free of commercial property rights and/or copyrights of third parties. VIGOR is obliged to exempt, independently of fault, the Purchaser from all claims that are lodged by third parties on account of the violation of commercial property rights and/or copyrights of third parties, and reimburse to the Purchaser all necessary expenses in conjunction with this utilisation. Legal costs shall be reimbursed by VIGOR based on the Lawyer Fees Act ("RVG"). The Purchaser shall inform VIGOR immediately in writing if claims are asserted against the Purchaser in relation to the supplied goods on account of the violation of property rights of third parties.
- VIGOR offers a full quality guarantee on all tools showing material defects or faulty workmanship. All adapters are excluded from the guarantee. The guarantee on sockets for impact operation is limited to material defects and/or faulty workmanship. The guarantee does not cover the sockets’ normal wear and/or tear damage. The guarantee will not be valid for tools which cannot be used any more due to their old age or due to abuse or improper use. The relevant operating instructions and safety instructions for the VIGOR tools shall be considered in this context. The general safety instructions as well as the data in the VIGOR tool catalogue shall also be considered. An improper use of tools occurs, especially, in case of:<br/>- an exceeding of the normal or specified loading capacity of the tool (for instance when using a diagonal cutter on a wire too that is hard or in case of chisels, centre punches or drift punches that are used on steel that is too hard or for work that is too heavy).<br/>- the further use of a tool that already shows damage or defects.<br/>- the operation of screws and nuts with a wrong-sized socket.<br/>- tools that have been modified.<br/>- the use of sockets designated for manual operation on impact wrenches.<br/>- the improper use of tools (e.g. use of screwdrivers as chisels or pry bars etc.).
- In order to make use of the guarantee right, the Purchaser shall send the tool carriage free domicile via specialist trade to VIGOR in the event of a material or manufacturing defect. VIGOR shall check the tool. If a material or manufacturing defect is present, VIGOR shall replace the goods or repair the goods free of charge.
- Compensation claims on whatever legal grounds which are made by the Purchaser are excluded unless based on cases of intent, gross negligence, bodily injury, death or damage to health, due to the violation of a guarantee pursuant to § 444 BGB, inability or the violation of a major contractual obligation.
- The compensation for the violation of a major contractual obligation is, however, limited to the foreseeable damage which is typical in contracts unless there is intent or gross negligence or liability due to bodily injury, death or damage to health or due to a guarantee pursuant to § 444, BGB. A reversal of the burden of proof to the Purchaser’s disadvantage is not associated with the above regulations.
- The provisions of the product liability law shall apply without restrictions.
- In the event that the Purchaser is obliged, on account of a defect in the supplied goods of VIGOR, to implement a recall action in respect to a third party, VIGOR shall bear the costs associated with the recall action insofar as the measures are reasonable and have been agreed with VIGOR before any costs are initiated.
- VIGOR has concluded an appropriate product liability insurance policy to safeguard corresponding measures.
C. Final provisions
- The place of fulfillment and exclusive court of venue for all disputes directly or indirectly resulting from this contractual relationship is Remscheid.
- The legal relationship between VIGOR and the Purchaser is exclusively subject to the law of the Federal Republic of Germany excluding the respective national provisions on the international conflict of laws, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated April 11, 1980.
- These Terms and Conditions shall apply until revoked.
- Should any one of the clauses in these Terms and Conditions be or become invalid either in part or in full, the validity of the rest and/or the other provisions shall not be affected.
Remscheid, September 2018