1. Field of application
1.1. These general terms and conditions of business and delivery only shall apply to all transactions with goods produced at home and abroad which NOVIA concludes with purchasers. Conflicting conditions of business shall apply only if NOVIA has expressly consented to them in writing. Unless agreed otherwise, these general terms and conditions of business and delivery shall apply to the entire duration of the business relationship, so that it is not necessary to submit these general terms and conditions of business and delivery for every further individual transaction.
2. Offer, order and other declarations
NOVIA offers are subject to confirmation. Agreements, side agreements, amendments and additions shall be made in writing. Orders shall only be binding upon being confirmed in writing by NOVIA.
3. Prices and payment conditions
3.1. NOVIA’s prices are quoted in EUROS ex-works, excluding VAT, packaging, freight, postage and insurance, unless another currency or other terms are agreed separately. The VAT is shown separately at the statutory rate on the invoice on the day of invoicing.
3.2. The prices confirmed by NOVIA shall apply. Insofar as delivery is to take place more than two months after the conclusion of the contract, NOVIA reserves the right to change the prices accordingly if, after the conclusion of the contract, cost reductions or cost increases (in particular as a result of collective wage agreements or changes to the prices of materials) occur; NOVIA shall provide proof of this to the customer upon request.
3.3. For all goods produced abroad, Novia shall have the right to change prices if, as a result of government measures (e.g. tax increases, increases in customs duties, etc.), the parameters used for the calculation of the price have changed since the conclusion of the contract.
3.4. Unless agreed otherwise between NOVIA and the purchaser, the purchase price shall be payable net within 30 days from the date of invoice. The deduction of any discount shall require a separate written agreement. In all other respects, the statutory provisions on late payment shall apply.
3.5. If – after the conclusion of the contract – a substantial risk to NOVIA’s claims for payment arises due to a substantial deterioration in the purchaser’s asset situation, NOVIA may demand an advance payment or the provision of securities within a reasonable period and refuse performance until the fulfilment of its request. NOVIA shall be entitled to withdraw from the contract and demand compensation if the purchaser refuses to do so or if the deadline that has been set passes without success.
3.6. Bills of exchange and cheques are accepted as conditional payment. The costs of discounting shall be borne by the purchaser. A guarantee for the timely presentation of the bill of exchange or check and for the protest of a bill of exchange is excluded.
3.7. Only uncontested or legally established claims shall entitle the purchaser to perform a set-off or withhold the goods.
4. Contents of the services (catalogues, drawings, other documents)
4.1. NOVIA’s declaration (offer, order confirmation) shall be authoritative with respect to the content, nature and scope of the service.
4.2. Commercially available or insignificant deviations in the delivered goods in terms of quantity and quality shall be accepted by the purchaser. The purchaser shall bear the risk of use and application unless NOVIA has expressly guaranteed a certain form of use or applicability. Unless NOVIA explicitly provides a guarantee, any details about the product are descriptions.
4.3. The details, drawings, dimensions, weights and colour shades referred to in brochures, catalogues and offers are approximate values which are customary in the industry, unless they have explicitly been designated by NOVIA as binding. Minor changes, which are usual in industry and commerce, as well as technical improvements are deemed to have been agreed.
4.4. NOVIA reserves its unconditional rights of ownership and exploitation under copyright to the plans, drawings and other documents made available by NOVIA to the purchaser. They may only be made accessible to third parties with our prior written consent.
5. Delivery times, partial delivery, call orders
5.1. Delivery periods and deadlines are non-binding unless they are explicitly agreed as binding in writing. Specified delivery periods shall begin with the dispatch of the order confirmation by NOVIA. The deciding factor with respect to compliance with the agreed delivery periods and deadlines is the notification of the readiness for dispatch or collection by NOVIA. Insofar as a calendar week (CW) is agreed as the delivery date, the delivery date is deemed to have been complied with if the notification of readiness for dispatch or collection is submitted by NOVIA on the last working day of the week.
5.2. The specified delivery times and deadlines refer to the normal course of business and are reasonably extended in the event of late receipt of documents, down payments or other advance payments by the purchaser, if clarification of technical questions is still required, in the case of subsequent changes to the contract by the purchaser or in the case of unforeseen events at NOVIA or its suppliers (such as disruptions to operations, official measures, energy supply problems, a delay in the delivery of important substances, strikes, lockouts and similar events for which NOVIA is not responsible).
5.3. If the delivery period or deadline is exceeded for reasons not attributable to NOVIA, the purchaser shall set NOVIA a written period of grace first. The deadline shall be reasonable regarding the contents of the contract, but shall not be less than 4 weeks.
5.4. NOVIA’s liability for damages for default or impossibility of performance shall be governed by Article 9.
5.5. Production-related excess and short deliveries shall be permitted within a tolerance of 5% of the total order quantity. The total price shall change in proportion to the excess or shortfall.
5.6. Partial deliveries shall be permitted to a reasonable extent; they shall be invoiced separately.
5.7. Call-off deliveries shall be accepted within 6 months from the order confirmation. After this period has been exceeded, NOVIA, in its own discretion, shall be entitled either to send the purchaser the goods having not been called off, to withdraw from the contract to demand damages.
6. Acceptance, dispatch and transfer of risk
6.1. Goods which are ready for dispatch shall be accepted immediately by the purchaser. Otherwise, NOVIA, in its own discretion, shall be entitled to dispatch them at the purchaser’s expense or to put them into storage at the purchaser’s expense and risk. NOVIA may invoice the purchaser a storage fee of 0.5% of the invoice amount for each month or part thereof. The storage fee shall be limited to 5% of the invoice amount, unless NOVIA can prove that the costs incurred are higher or the purchaser can show that they are lower.
6.2. In the absence of any special agreement, NOVIA, in its best discretion, shall select the shipment type and route.
6.3. The risk shall pass to the purchaser upon transfer to the shipping agent or at the beginning of the storage period, however not later than upon leaving the factory or the warehouse. This also applies if NOVIA has accepted the delivery and/or in the case of franco, fob or cif transactions.
6.4. If the purchaser is in default of acceptance, the risk of accidental loss or accidental deterioration of the contractual object shall be transferred to the purchaser at the time when the latter comes into default of acceptance. If shipment or acceptance is delayed due to circumstances beyond the control of NOVIA, the risk shall pass to the purchaser upon receipt of the notice of readiness for dispatch.
7. Retention of title
7.1. NOVIA shall retain ownership of the delivered goods until full payment has been received. The retention of title shall also apply until the full payment of all receivables from the business relationship with the purchaser. This also applies even if individual or all receivables have been included by NOVIA in an open account and the balance has been drawn and accepted. In case of purchaser’s behaviour in breach of the contract – in particular default of payment – NOVIA shall be entitled to withdraw the purchased item. Such withdrawal of the purchased item by NOVIA shall not constitute withdrawal from the contract, unless NOVIA has explicitly declared this in writing. NOVIA also reserves the right to withdraw from the delivery transaction if insolvency proceedings are initiated against the purchaser’s assets. The attachment of the purchased item by NOVIA shall always be deemed withdrawal from the contract. Upon withdrawal of the purchased item, NOVIA shall be entitled to sell it; the proceeds of the sale shall be offset against the liabilities of the purchaser – minus any reasonable costs of the sale.
7.2. The purchaser is obliged to store the reserved goods carefully and insure them sufficiently against loss and damage (theft, fire, etc.). The purchaser hereby assigns the claim against the insurance in the event of damage or loss to NOVIA, which hereby accepts the assignment. The purchaser shall also be obliged to notify NOVIA immediately of any enforcement measures of third parties with respect to the reserved goods, the receivables assigned to NOVIA or to any other securities together with the transfer of the documents required for any intervention. This shall also apply to any other form of restrictions.
7.3. The purchaser shall be entitled to sell the reserved goods in the ordinary course of business, provided that he fulfils his obligations arising out of the business relationship with NOVIA in good time. However, he shall not be entitled to pledge or transfer ownership of the reserved goods by way of security. All claims and rights arising from the sale of the reserved goods to which NOVIA has ownership rights are hereby assigned by the purchaser for the purposes of security to NOVIA, which hereby accepts the assignment.
7.4. The processing or conversion of the purchased item by the purchaser is always carried out on behalf of NOVIA. If the purchased item is processed with other objects not belonging to NOVIA, NOVIA shall acquire the co-ownership of the new item in proportion to the value of the goods (final invoice amount including VAT) to the other processed objects at the time of processing. Otherwise, the same provisions shall apply to the item created by processing as to the goods delivered subject to the retention of title.
7.5. If the goods are inseparably mixed with other items not belonging to NOVIA, NOVIA shall acquire co-ownership of the new item in proportion to the value of the purchased item (final invoice amount including VAT) to the other mixed objects at the time of mixing. If mixing is carried out such that the purchaser’s item is to be regarded as the main item, it shall be deemed to have been agreed that the purchaser shall transfer co-ownership to NOVIA on a pro rata basis. The purchaser shall store the wholly or co-owned items produced in this way free of charge on behalf of NOVIA.
7.6. The purchaser shall also assign to NOVIA the claims for the protection of NOVIA’s claims against the purchaser arising from the combination of the purchased item with a plot of land against a third party.
7.7 NOVIA undertakes to release the securities to which it is entitled on purchaser’s request to the extent that the value of the securities exceeds the value of the receivable to be secured by more than 20%. NOVIA may choose the security to be released.
8.1. Any warranty rights of the purchaser – with the exception of claims for damages – shall expire one year after the delivery of the goods. The warranty shall become void if the purchaser treats, maintains, stores, processes or uses the goods improperly. The same applies to defects which only slightly reduce the goods’ value or suitability for use.
8.2. Obvious defects shall be reported by the purchaser immediately upon receipt of the goods at the destination; defects which are not obvious immediately after their discovery. The complaint must be made in writing. If an acceptance test for the goods or an initial sample inspection has been agreed, a complaint about defects shall be excluded if the defects should have been ascertained by the purchaser on the basis of a careful acceptance test inspection or initial sample inspection.
8.3. NOVIA shall be given the opportunity to ascertain the defect to which the complaint relates. The goods to which the complaint relates shall be returned to NOVIA immediately upon request. NOVIA shall assume the transport costs if the complaint is justified. In case of bulk deliveries NOVIA shall be given the opportunity to sort out the defective goods. If the purchaser does not comply with these obligations or makes changes to the goods to which the complaint relates without the consent of NOVIA, his warranty claims shall be forfeited.
8.4. In the case of a justified notification of defects which is submitted within the stipulated deadline, NOVIA, in its own discretion, shall first remedy the defect or provide perfect replacement (subsequent performance).
8.5 If NOVIA fails to comply with this obligation within a reasonable period, the purchaser shall set NOVIA a reasonable grace period. If this grace period expires without success, the purchaser may assert further claims for compensation of the damage instead of performance, withdrawal or a price reduction. The purchaser may also assert these further claims – without a further deadline being required – even if NOVIA finally and irrevocably refuses fulfilment, rejects both types of subsequent performance due to disproportionate costs, or if the type of subsequent performance to which the purchaser is entitled has failed or cannot be reasonably expected to be accepted by him. Any rectification shall be deemed failed after the second unsuccessful attempt, unless the nature of the goods or the defect or other circumstances stipulate otherwise.
8.6. The liability of NOVIA for damages based on poor performance shall be governed by Article 9.
9.1. The liability of NOVIA shall be governed by the statutory provisions, unless alternative arrangements are agreed below. The following provisions shall not apply if NOVIA is liable for injury to life, body or health; in this case, the statutory provisions shall apply exclusively.
9.2. Unless agreed otherwise below, any liability of NOVIA shall be excluded. This shall apply in particular to claims based on culpa in contrahendo, the infringement of ancillary and protective contractual obligations, as well as tort. The same shall apply to claims of the purchaser due to delay and impossibility of performance. NOVIA shall not be held liable for damage not caused to the delivered goods themselves, and in particular not for loss of profit and other financial losses of the purchaser.
9.3. The foregoing disclaimer shall not apply if
– the cause of damage was wilful or grossly negligent; – material contractual obligations have been culpably violated or the purchaser has the right, according to the statutory provisions, to demand compensation for damage instead of performance or the reimbursement of futile expenses; – NOVIA is liable under the Product Liability Act; – NOVIA has assumed liability with regard to its contractual obligation by means of an explicit, written declaration; the same shall apply if NOVIA has assumed the risk of procurement or a guarantee for the existence of a specific property with respect to the goods and the assumption of such guarantee was intended to protect the purchaser against damage not caused to the delivered goods.
9.4. In case of culpable violation of essential contractual obligations within the meaning of 9.3., NOVIA shall only be liable – except for wilful intent or gross negligence – for damage which can be reasonably foreseen and is typical for this type of contract. The same shall apply to the purchaser’s claim for compensation for damage instead of performance and the reimbursement of futile expenses.
9.5. Insofar as NOVIA has to pay compensation within the scope of the warranty, the claim for damages shall become statute-barred within one year after delivery of the goods. Claims based on culpa in contrahendo, the infringement of ancillary and protective contractual obligations, as well as tort, shall lapse after one year, beginning at the time at which the purchaser becomes aware of the cause of damage and the person having caused the damage.
9.6. To the extent liability on the part of NOVIA is excluded, this exclusion shall also apply to the employees, legal representatives and vicarious agents of NOVIA.
10. Data protection
NOVIA shall store the purchaser’s data according to the Federal Data Protection Act.
11. Place of performance, place of jurisdiction, choice of law and other provisions
11.1. The place of performance for all obligations under this contractual relationship shall be the registered office of NOVIA (Iserlohn). The place of jurisdiction for all disputes arising from this contractual relationship, also within the context of a bill of exchange and cheque process, shall be the registered office of NOVIA (Iserlohn), provided that the purchaser is a registered trader, a legal entity under public law or a special fund under public law. NOVIA shall be also entitled to assert claims at any other place of jurisdiction.
11.2. The law of the Federal Republic of Germany shall apply. The application of the United Nations Convention on the International Sale of Goods (CISG / “UN Sales Convention “) of 11 April 1980 shall hereby be excluded.
Date: January 2015
novia Handels GmbH
Tel +49 (0) 2371.91 93-80
Fax +49 (0) 2371.77 39 95
E-mail: [email protected]