General Terms and Conditions of Sale,
Delivery and Assembly of
YANMAR Energy System Europe GmbH
towards entrepreneurs

General Terms and Conditions of Sale, Delivery and Assembly of YANMAR Energy System Europe GmbH towards entrepreneurs

§ 1 Scope

  • 1.1 Our deliveries, services and offers to entrepreneurs are made exclusively on the basis of the following Terms and Conditions of Sale and Delivery, unless expressly agreed otherwise in writing. Our General Terms of Service apply to services. Any conditions of the purchaser that conflict with or differ from our Terms and Conditions of Sale and Delivery will not be recognized.
  • 1.2 These Terms and Condition of Sale and Delivery conditions also apply to all future business with the purchaser, even if they are not expressly agreed again. These Terms and Conditions are considered accepted at the latest when the goods or services are received.
  • 1.3 Deviating individual agreements remain unaffected by these Terms and Conditions.

§ 2 Offers and Coverage

  • 2.1 Our offers and documents attached to the offer are subject to change and non-binding, unless we have expressly designated them as binding. Our written order confirmation is decisive for the acceptance and execution of the order. Deviating individual agreements remain unaffected.
  • 2.2 The documents belonging to the order confirmation, such as illustrations, drawings, weight and dimensions, are decisive. Minor deviations and changes and improvements in the design that are reasonable for the purchaser are deemed to be in accordance with the contract.
  • 2.3 In addition, we reserve ownership and copyright to all offer documents, cost estimates, samples, drawings and similar information of a physical and non-physical nature; they may not be made accessible to third parties.
  • 2.4 In the case of call off orders, the purchaser must accept the delivery no later than four weeks after the order has been placed, unless otherwise agreed; he must declare the call off in good time, but at least two weeks in advance. If the purchaser does not declare the call off as required, the purchase price is due immediately after the agreed deadline for acceptance. If the purchaser has not made the payment of the purchase price, we will give him a reasonable grace period, after which we are entitled to claim damages instead of fulfilment. A grace period is not necessary if the purchaser seriously and finally refuses to pay or if there are special circumstances that, taking into account the mutual interests, justify the immediate assertion of the claim for damages.
  • 2.5 The conclusion of the contract is subject to the reservation that in the case we ourselves receive incorrect or improper delivery, we will not deliver, or only partially or late. This only applies in the event that we are not responsible for the non-delivery. In the event of unavailability or only partial availability of the goods, we will immediately inform the purchaser and promptly reimburse the purchaser’s advance payments.

§ 3 Time of delivery, Delays

  • 3.1 Delivery dates or deadlines that have not been expressly agreed as binding in writing are only non-binding information. The specified delivery times are approximate. Compliance with deadlines for deliveries requires the timely receipt of all documents to be supplied by the purchaser, the necessary approvals and releases, in particular from building authorities, electricity companies, TÜV, as well as compliance with the agreed terms of payment and other obligations by the purchaser. If these requirements are not met in time, the deadlines will be extended accordingly; this does not apply if we are responsible for the delay.
  • 3.2 If the deadlines are not met because of force majeure or similar events, e.g. strikes, lockouts, lack of raw materials, the deadlines are extended adequately.
  • 3.3 If shipping or delivery is delayed at the request of the purchaser by more than one month after notification of readiness for dispatch, the purchaser can be charged an appropriate storage fee for each month started. The purchaser is free to prove lower storage costs.
  • 3.4 If the purchaser is in default of acceptance, we give him a reasonable grace period, after which we are entitled to claim damages instead of performance. A grace period is not necessary if the purchaser seriously and finally refuses to accept the goods or if there are special circumstances which, taking into account the interests of both parties, justify the immediate assertion of the claim for damages.

§ 4 Transfer of risk

  • 4.1 The delivery and the transfer of risk take place according to FCA Marl, Incoterms 2010. The risk is transferred to the purchaser as follows: (i) for deliveries without assembly or installation, when the goods have been dispatched to the first forwarder, (ii) for deliveries with assembly and installation, on the day of the acceptance at the customer’s facilities or, if agreed, after a successful trial run. At the purchaser’s request and expense, deliveries acc. to § 4.1 (i) are insured by us against the usual transport risks.
  • 4.2 If the dispatch or delivery is delayed for reasons for which the purchaser is responsible or if the purchaser is in default of acceptance for other reasons, the risk passes to the purchaser when we notify the purchaser of the availability of the goods.

§ 5 Installation and Assembly

Unless otherwise agreed in writing, the following provisions apply to installation and assembly:
  • 5.1 The purchaser has to provide the follwing timely and at his own expense:
    –    all earthworks, construction work and other work not customary in the particular trade, including the necessary specialists and auxiliary staff, building materials and tools
    –    the items and materials required for assembly and commissioning, such as scaffolds, hoists and other devices, fuels and lubricants,
    –    the electrical lines, power connections, cooling and defrosting water lines, ventilation and air-conditioning, foundations and all construction and modification work that may be required for assembly and commissioning,
    –    energy and water at the point of use including connections, heating and lighting,
    –    at the assembly site for the storage of machine parts, apparatus, materials, tools, etc., sufficiently large, suitable, dry and lockable rooms and adequate working and recreation rooms for the assembly staff including the circumstances of adequate sanitary facilities; In addition, to protect our property and the assembly personnel on the construction site, the customer must take the measures he would take to protect his own property and personnel,
    –    Protective clothing and protective devices that are required due to special circumstances at the installation site.
  • 5.2 Before the start of the assembly work, the purchaser must provide the necessary information about the location of concealed electricity, gas, water pipes or similar systems as well as the necessary static information without being asked.
  • 5.3 Before the start of the installation or assembly, the supplies and objects required for the start of the work must be at the installation or assembly site and all preparatory work must be carried out before the start of the assembly so that the assembly or installation can start as agreed and can be carried out without interruption. Access routes and the installation or assembly site must be leveled and cleared.
  • 5.4 If the assembly, installation or commissioning is delayed due to circumstances for which we are not responsible, the purchaser must bear the costs for waiting time, additional travelling and expenditure of time of assembly personnel to a reasonable extent.
  • 5.5 The purchaser must weekly certify to us the duration of the working time of the assembly staff as well as certify immediately the completion of the installation, assembly or commissioning.
  • 5.6 If we request acceptance of the delivery after completion, the purchaser must do it within two weeks. If this does not happen, the acceptance is deemed to have taken place. The acceptance is also deemed to have taken place if the goods have been put into use – possibly after the completion of an agreed test phase. The purchaser may not refuse to accept deliveries due to immaterial defects.
  • 5.7 Partial deliveries are permitted insofar as they are reasonable for the purchaser.

§ 6 Notice of Defects and Warranty

  • 6.1 The purchaser’s warranty rights require that the purchaser has properly complied with his inspection and notification obligations owed pursuant to Section 377 HGB (German Commercial Code). The purchaser is obliged to examine the goods for obvious defects upon delivery. Upon delivery, the purchaser is also obliged to check the accompanying documents for compliance with the order data of the goods. Missing quantities and damage must be noted on the delivery note or freight documents when the goods are taken over and confirmed by the driver’s signature.
  • 6.2 The purchaser must immediately notify us of obvious defects in writing. The purchaser must notify us in writing of defects that only become apparent later after their discovery.
  • 6.3 In the event of a violation of the obligation to inspect and give notice of defects, as well as the documentation requirements on the delivery note and freight documents in accordance with § 6 paragraphs 1 and 2, the goods are deemed to have been approved in view of the defect in question.
  • 6.4 We are liable for defects as follows: All parts or services which have a defect within the limitation period, provided that the cause already existed at the time of the transfer of risk, shall at our discretion be repaired free of charge, newly delivered or newly rendered. The supplementary performance can be refused as long as the purchaser is in arrears with other orders. If we deliver devices or components on the basis of a warranty request from the purchaser, these deliveries are made without acknowledging a warranty obligation and subject to the technical inspection of the defect. If our warranty obligation is determined, the invoiced price of the device or component supplied is credited.
  • 6.5 As Defects in particular are not regarded: (i) parts that are subject to premature wear due to their material nature or type of use and only become defective after the transfer of risk, e.g. V-belts, thermometers, glass and similar easily fragile objects, including damage to paintwork and enamel, (ii) defects due to natural wear and tear, (iii) incorrect or negligent handling, excessive stress, improper use, deviations from the contractually agreed operating conditions, (iv) defective work on the basic masonry or unsuitable building ground, (v) improper repair, (vi) defects due to improper commissioning.
  • 6.6 First of all, we must be given the opportunity for supplementary performance within a reasonable period. If the supplementary performance fails twice, the purchaser can – regardless of any claims for damages according to § 7 – withdraw from the contract or reduce the remuneration.
  • 6.7 Claims by the purchaser due to the expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase because the goods have brought to a different location than the branch of the purchaser, unless the shipment corresponds to the intended use.
  • 6.8 Necessary costs of dismantling the goods and reinstalling the goods, in particular for cranes or lifting tools, will only be borne insofar as the goods have been installed as intended and the purchaser was unable to recognize the defectiveness of the goods during installation.
  • 6.9 The purchaser’s right of recourse against us in accordance with § 478 BGB (entrepreneur’s recourse) exists only to the extent that the purchaser has not made any agreements with his purchaser that go beyond the statutory claims for defects. For the scope of the purchaser’s right of recourse against us in accordance with Section 478 (2) BGB, Section 6.7 applies accordingly.
  • 6.10 Warranty claims expire 12 months after delivery. This does not apply insofar as the law pursuant to Section 438 (1) No. 2 (buildings and goods for buildings), Section 479 (1) (right of recourse) and Section 634 a (1) No. 2 (construction defects) of the German Civil Code (BGB ) prescribes longer periods as well as in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty by us and in the event of fraudulent concealment of a defect.

§ 7 Limitation of Liability

  • 7.1 We are only liable to the purchaser for compensation of damages if we are responsible for a breach of contract or according to product liability law. We are only responsible for
    • 7.1.1 the violation of essential contractual obligations, the violation of which jeopardizes the achievement of the purpose of the contract, based at least on simple negligence,
    • 7.1.2 the willful or grossly negligent breach of non-essential contractual obligations,
    • 7.1.3 culpable injury to life, limb, health,
    • 7.1.4 defects that we maliciously concealed as such or the absence of which we have guaranteed.
  • 7.2 Insofar as there is no intent or gross negligence in cases 7.1.1 and 7.1.2, the obligation to pay damages is limited to the contract-typical and foreseeable damage.
  • 7.3 Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives and agents.

§ 8 Retention of Title

  • 8.1 We reserve ownership of delivered items until all payments from the contract have been received. If the purchaser is in default of payment, we are entitled to take back the delivered or installed item after a reminder and withdrawal from the contract and the purchaser is obliged to surrender this item. The purchaser bears all costs for retrieval and removal.
  • 8.2 If items or spare parts, inserted during work or repair, are connected with another object, so that they become an essential part of another thing, the purchaser transfers his claims or his co-ownership right to the new object in the amount of our claim to us. We undertake to release the security to which we are entitled insofar as its value exceeds the claim to be secured by more than 10 %.
  • 8.3 We are entitled to insure the delivered or installed goods at the cost of the purchaser against theft, breakage, fire, water and other damage, unless the purchaser himself proves the insurance.The goods must be stored in such a way that the retention of title remains effective.
  • 8.4 The purchaser may only sell the delivered or installed items in the ordinary course of business under his normal terms and conditions and as long as he is not in default, provided that the resale has been agreed with us and provided that the claims from the resale pass to us. The claims from the resale of the reserved goods are already now assigned to us. The purchaser is entitled to collect the claims assigned to us. This direct debit authorization expires in the event of revocation by us, but at the latest in the event of suspension of payment, late payment, non-payment of a bill of exchange, application for or opening of insolvency, judicial or extrajudicial settlement or total enforcement proceedings or in the event of other loss of assets of the purchaser. Upon request, the purchaser must notify us of the assigned claims and their debtors, provide all the information required for collection, hand over the associated documents and notify the debtors of the assignment. We are also entitled to notify the debtor of the purchaser of the assignment and to request payment for it.
  • 8.5 In the event of seizure of the delivered or installed goods or other impairment by third parties, the purchaser is obliged to immediately notify the third party about our property rights, to notify us immediately in writing and to send copies of the seizure protocol. The purchaser bears all costs that have to be paid to cancel the seizure or to return the reserved goods, unless they are paid by third parties.

§ 9 Prices and Terms of Payment

  • 9.1 The prices are EURO prices. They only apply if the offered delivery is ordered in total. We are bound to the offered prices that are not fixed prices for a period of four months after conclusion of the contract. We are entitled to request a reasonable advance payment upon conclusion of the contract. This is agreed individually with the purchaser.
  • 9.2 The final prices are calculated from our place of business, but excluding packaging and assembly. Packaging will not be taken back. The purchaser must ensure appropriate disposal. If the assembly and commissioning are not included in the price, we will provide the purchaser upon demand with assembly personnel against a charge according to separate assembly conditions.
  • 9.3 Fixed prices are only valid if we have recognized them as such in writing.
  • 9.4 If the purchaser is in arrears with his payment obligation, he must compensate us for the damage caused by the delay, at least in the amount of the statutory interest.
  • 9.5 All invoice amounts are payable in one sum immediately after the invoice is issued. Partial payments for deliveries are only possible if they have been agreed in writing beforehand.
  • 9.6 The prices are exclusive of VAT, which shall be added in the respective statutory amount.
  • 9.7 If taxes, customs duties, freight, fees or other levies affecting the delivery are increased, reduced or newly introduced by third parties after the conclusion of the contract, these will be at the expense/ in favor of the purchaser.
  • 9.8 If, after the conclusion of the contract, information about a significant deterioration in the financial position of the purchaser is received that no longer justifies the granting of a loan and jeopardizes our claim to the purchase price (e.g. insufficient credit insurance), our payment claims become due immediately. We are entitled to claim security (e.g. in the form of prepayment) due to due and / or not yet due claims from the contracts not yet fulfilled by us, even if payment has already been made with a bill of exchange. If the purchaser does not comply with this request in due time, we can withdraw from the contract and claim damages for non-performance. Delivery obligations can be refused until prepayment or security. Regulations of the bankruptcy law and the compulsory administration law remain unaffected.

§ 10 Applicable Law, Place of Jurisdiction

  • 10.1 For all legal relationships between us and the purchaser, the law of the Federal Republic of Germany applies exclusively, with the exception of the provisions of the United Nations Convention on Contracts for the International Sale of Goods dated 04/11/1980 and the rules on conflict of laws, which would come to the application of another legal system.
  • 10.2 These Terms and Conditions of Sale and Delivery were created in an English version and a German version. The German version prevails in the case of contradictions between the two versions.
  • 10.3 The place of fulfillment and the place of jurisdiction for all lawsuits arising out of or in connection with the contract is our registered place of business. However, we are also entitled to sue the purchaser at his place of business.
  • 10.4 Should one or more provisions of these conditions be void or contestable, the validity of the remaining provisions will not be affected.
(Version June 2020)