General Terms and Conditions Redcrane
Standard Terms and Conditions of Sale for Exports
subject to the United Nations Convention on Contracts for the International Sale of Goods
- General provisions
The following General Terms and Conditions of Sale for Exports and Delivery apply to all contracts for the delivery of products by Redcrane to our business partners (hereinafter referred to as “Buyer”). Any different, contrary or additional Terms and Conditions or contracts of Buyer will not be incorporated into the contract, not even if they are known. In ongoing business relations these General Terms and Conditions shall also apply to all future business transactions.
- Formation of the contract
The contract is formed by a (written) order or demand from the Buyer and the direct or implied acceptation/confirmation of this order by Redcrane. The Buyer’s order or demand is a binding offer that Redcrane can accept by sending an order confirmation, an invoice or by starting to execute the order.
If Redcrane acknowledges an offer from Buyer, adding new terms or different terms that do not materially alter the terms and conditions of the offer, this shall constitute an acceptance of the offer unless Buyer immediately objects to the lack of agreement. If Buyer fails to do this, the additional or different terms shall become part of the contract.
All agreements, irrespective of whether they were made upon or after conclusion of contract, must be in writing. Verbal agreements are legally binding only if confirmed in writing by Redcrane.
Technical consulting is not subject of the contract; it is binding only if provided in writing. It does not release the Buyer from its obligation to use Redcrane products appropriately and in a professional manner.
- Scope of delivery
Drawings and details on weight, dimensions, consumption and performance are without obligation, unless expressly designated as binding in the order confirmation. Redcrane reserves the right to incorporate changes and improvements to the design, materials used and workmanship, provided that these do not adversely affect the usefulness of the product.
- Delivery, advance payment and import licenses
The products will be delivered by Redcrane to the Buyer if nothing else has been expressly agreed only after receipt of the total payment set out in clause 6.
The delivery period shall be deemed complied with if, in the case of delivery from the place of dispatch, the products are dispatched before the delivery period has expired or, in the case of an agreed collection by Buyer, Redcrane has made the products available.
Buyer must obtain and furnish to Redcrane before delivery all necessary import certificates and any evidence for necessary certification as well as other documents for import in the country of destination. This must be done in good time before the agreed delivery date. These documents must be submitted on time before the products are loaded.
If Redcrane is late in delivering the products, Buyer shall be entitled to declare the contract avoided if the preconditions set out in the UN Sales Convention (CISG) have been met. If Buyer suffers loss due to late delivery, Redcrane shall only be liable to the extent set out in clause 8.
- Force majeure
If circumstances of force majeure, such as flooding, fire, earthquakes, snowstorms, drought, hail, industrial disputes, war, prohibitions on import or export and other sanctions and events that are beyond Redcrane’s control, prevent delivery from being effected on time, the delivery period shall be extended for as long as the hindrance lasts. If it is unreasonable for either of the contracting parties or for both contracting parties to perform the contract, the party for whom this is unreasonable shall have a right of rescission. This shall not affect Art. 79 of the UN Sales Convention (CISG).
- Purchase prices, payment, delay
All purchase prices apply ex works excluding loading and packaging by Redcrane. The prices of spare parts do not include their installation. Value-added tax at the rate valid on the date of delivery is added to the purchase prices.
The Buyer must pay 1/3 of the purchase price when placing the order (advance payment), 1/3 becomes due upon fabrication of the product and 1/3 after notification of the readiness for delivery and before shipping. The payment has to be made within 7 calendar days after receiving the invoice.
All payments shall be made in euros if not otherwise stated.
In the event of late payment in accordance to the above mentioned paragraph, Buyer shall pay Redcrane interest at an annual rate of 8 percentage points above the base rate set by the European Central Bank. The criterion for judging whether payment has been made in good time is the date when the amount in question is credited to Redcrane’s account. Redcrane reserves the right to claim further default damage.
On forming the contract it is assumed that Buyer is solvent and creditworthy. Redcrane may suspend the delivery or performance of its obligations if, after receiving the written order from the Buyer or the acceptance by the own order confirmation, it becomes apparent that Buyer will not pay 100 % of the purchase price or fulfil another substantial part of its obligations as a result of a serious deficiency in Buyer’s ability to perform the contract or in Buyer’s creditworthiness.
In this case Redcrane may prevent the products from delivery or being handed over to Buyer, even if Buyer holds a document entitling Buyer to obtain them.
If purchase prices are increased between the Buyer’s order date and the final delivery date, Redcrane shall be entitled to claim the higher prices if there is no delay in delivery on the part of Redcrane at the time of the price increase. If price increases of more than 15 % are claimed, the Buyer shall be entitled to withdraw from the contract.
The retention of payments or the offsetting of any counterclaims of the Buyer shall be permissible only if such counterclaims are undisputed or have been declared legally valid by a court of law and if the counterclaim in case of retention is based on the same contractual relationship.
This paragraph shall not affect Redcrane’s rights in accordance to Art. 53 et seq. of the of the UN Sales Convention (CISG).
- Delivery, transfer of risk
Delivery is deemed to have been effected on time by Redcrane after handover of the products to the carrier. Partial shipments shall be permissible, unless this adversely affects the use of the products.
Unless expressly otherwise agreed, the products are deemed to be sold “ex works“, even if Redcrane has accepted delivery “freight paid”.
Redcrane is not bound, in accordance to Art. 67 of the UN Sales Convention (CISG), to hand the products over at a particular place, the risk passes to the Buyer when the products are handed over by Redcrane to the first carrier for transmission to the Buyer. The fact that Redcrane is authorized to retain documents controlling the disposition of the products does not affect the passage of the risk.
- Breach of contract by Redcrane
The Buyer has the right, upon existence of an important reason due to the breach of a cardinal duty based on a willful intent and gross negligence by Redcrane and/or an important lack of conformity of the products delivered by Redcrane, to cancel the
contract in accordance to Art. 49 of the UN Sales Convention (CISG) and/or to claim for damages in accordance to Art. 74 et seq. of the UN Sales Convention (CISG).
The cancellation needs to be made in writing.
Concerning the conformity of the products, these must be examined immediately, but no later than within 7 calendar days from the date that the products reach the destination ordered by the Buyer. Buyer loses the right to rely on a lack of conformity of the products in accordance to Art. 39 of the UN Sales Convention (CISG) if Redcrane has not been given written notice within 7 calendar days, precisely describing the nature and scope of the lack of conformity and also indicating the place where the products are stored.
If the products are accepted before they have been delivered, a quality certificate or an acceptance record will be prepared. In this case no complaints will be accepted at a later date regarding the conformity of the product.
- Limited liability of Redcrane
Redcrane shall be liable for damages upon existence of an important reason due to the breach of a cardinal duty based on a willful intent and gross negligence and/or an important lack of conformity of the products delivered by Redcrane.
In case of simple negligence and/or an unimportant lack of conformity of the product, Redcrane, including the representatives and vicarious agents of Redcrane, shall be liable only:
- in case of damage due to death, physical injury or an impairment to the health of another.
- in case of damage caused by a breach of an essential contractual duty; in this case the liability of Redcrane is limited to compensation for foreseeable damage which typically occurs.
- for damage arising from impossibility and default due to the breach of cardinal duties.
Damages shall at all events be limited to the loss that Redcrane foresaw as a possible consequence of the breach of contract and/or lack of conformity at the time when the contract was formed or which Redcrane could have foreseen when giving consideration to circumstances that Redcrane was aware of or ought to have been aware of. Any eventual loss of profit by the Buyer is excluded.
Redcrane will explicitly exclude the own liability, guarantee or any lack of conformity of the product for the purchase of already used and/or second hand products.
- Breach of contract by the Buyer
In case of the Buyer shall cancel the contract/order in an unjustified way or not on time, Redcrane has, without further prejudices, the possibility to claim actual damages, and to require at least 30% of the purchase price for loss of profit.
Redcrane has the right to cancel the contract if the payments by the Buyer are not received within 7 calendar days after receiving the invoice in accordance to Art. 6.
This shall not affect Redcrane’s right to claim for remedies for breach of contract by the Buyer in accordance to Art. 61 et seq. of the of the UN Sales Convention (CISG).
- Retention of title / Insolvency
If exceptionally Redcrane agreed to deliver the products before being paid 100%, Redcrane retains title to the products that are delivered until the full purchase price and all further debts arising from the business relationship with Buyer have been paid.
The transformation or processing of the products under retention of title by Buyer shall always be done on Redcrane’s behalf, without this giving rise to any obligations on the part of Redcrane. Redcrane shall become the owner of the new items in whatever stage of transformation or processing they may be. If the products under retention of title are processed, transformed, amalgamated, mixed or combined with other products that do not belong to Redcrane, Redcrane shall obtain co-ownership of the new item in the same ratio as that between the invoice price of the products under retention of title and the invoice price of the other products. Buyer hereby transfers to Redcrane its rights of co-ownership, in the meaning of the preceding sentence, to the value of the invoice price of the products under retention of title.
Buyer may sell the products under retention of title in the ordinary course of business. Buyer may not pledge the products, transfer them as a security on a debt or assign them as collateral. Buyer hereby assigns to Redcrane all claims arising from the resale of the products under retention of title or the new products resulting from their transformation, processing, amalgamation, mixing or combination. This shall also apply if the products are sold together at a single price with other products that do not belong to Redcrane. If a third party has obtained ownership or co-ownership of the product by law as a result of the transformation, processing, amalgamation or combination, Buyer hereby assigns the claims arising against the third party to Redcrane.
If Buyer is late in remitting a payment, Redcrane may refuse to allow Buyer to use the products under retention of title or impose certain restrictions on the use of the products.
If Buyer meets the objective requirements for the duty to file for insolvency, the Buyer must refrain from using the products under retention of title in any way, without being requested to do so. In this case Redcrane shall have the right to rescind the contract and demand the return of the product under retention of title.
- Export Control
Redcrane informs the Buyer that the deliveries of products rendered under these General Terms and Conditions might be prohibited or restricted by any mandatory or non-mandatory national or international law, regulation, administrative decision or court order including any UN-Resolution, embargo, customs regulations, EC- / US- or state- sanction lists or any regulation on the control of exports, transfer, brokering and transit of dual-use items.
In this case, the time agreed for delivery shall be extended by the duration of such delay and also by the time required for resumption of contract performance. In case the Buyer culpably violates such export Laws, the Buyer shall indemnify Redcrane and hold Redcrane harmless of any damages or reasonable expenses incurred hereof.
- Place of jurisdiction
The venue for all legal disputes arising either directly or indirectly out of contractual relationships based on the contract and/or these General Terms and Conditions shall be in Luxembourg (Commercial Court, Residence St Esprit, B.P. 23, Luxembourg). In this case the language will be French.
Redcrane further have the right to take legal action against the Buyer at a court with jurisdiction over the registered office or branch office of the Buyer at the discretion of Redcrane.
- Applicable law
The contractual relationships shall be governed and construed in accordance with the UN Sales Convention (CISG), and to the extent that the respective issue is not covered by the CISG, by reference to the substantive laws of Luxembourg.
- Partial invalidity
If one of the provisions of these General Terms and Conditions should be or become ineffective, this shall not affect the validity of the General Terms and Conditions in other respects. The parties hereto are obliged to agree upon a provision to replace the ineffective provision that approximates as closely as possible the economic intent of the ineffective provision.