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General Terms and Conditions

General Terms and Conditions of Sale and Delivery


1. Preamble

These standards terms and conditions shall be considered the only valid terms and conditions, provided that they are not amended in an express written agreement reached between the parties.

The offer, the acceptance of the offer, the order confirmation or the sale of any product shall be subject to these terms and conditions. Any terms and conditions or conditions amending any agreement stipulated by the Purchaser shall be objected to; these shall enter into effect vis-à-vis the Seller upon written consent by the Seller.

These terms and conditions shall form the basis of any future individual transactions between the Purchaser and the Seller and preclude the validity of any other agreement.

Any errors or omissions reproduced in sales brochures, price lists, offer documents or other documents of the Seller may be corrected by the Seller without the Seller being held liable for any damage incurred as a result of said errors.

These General Terms and Conditions of Sale and Delivery shall only apply to trade customers. Should the Purchaser be an end-consumer as per Section 13 of the German Civil Code, the Purchase shall promptly inform the Seller in writing.

 

2. Order and Tender Documents

Orders placed by the Purchaser shall only be deemed accepted by the Seller if written acceptance is issued by the Seller or his agent/representative within 14 days of the receipt of the order.

Quantity, quality and description, as well as any specifications relating to the product shall correspond to the offer submitted in writing by the Seller (if accepted by the Purchaser) or to the order placed by the Purchaser (if accepted by the Seller). All sales documents, specifications and pricelists shall be treated with confidentiality and may not be made available to third parties.

The Ordering Party shall bear responsibility for the correctness of the order and shall also bear responsibility for providing the Seller with all information related to the ordered products within an appropriate period of time so as to permit the order to be carried out in accordance with the sales contract.

Should the products have to be produced or otherwise processed or finished by the Seller and should the Ordering Party have submitted specifications to this effect, the Ordering Party shall indemnify the Seller and his suppliers/sub-contractors against any losses, damages, costs or other expenditure incurred or that might be incurred by said suppliers/sub-contractors as a consequence of the contractual processing or finishing of the product on the basis of the specifications of the Ordering Party constituting an infringement of any patent, copyright, trademark or other intellectual property rights held by a third party.

The Seller shall reserve the right to change the product descriptions with regard to its specifications to the extent that all applicable legal provisions are taken into account, in so far as much that any such change does not lead to any degradation in the quality and functionality of the ordered product.

 

3. Purchase Price

The purchase price shall be the Seller’s price quoted, or, if no individual price has been quoted, the price listed in the currently-applicable price lists of the Seller valid at the time of the placing of the order.

The Seller reserves the right, after notifying the Purchaser in a timely manner and before delivery of the product, to raise the price of the product as is necessary to reflect general price developments beyond the control of the Seller (including, but not limited to, fluctuations in exchange rates, currency regulations, customs amendments, a significant rise in the price of materials or production costs) or due to changes imposed by his suppliers.

If a price increase of more than 20% of the originally quoted purchase price is demanded, the Purchaser can rescind from the contract without prejudice to any other grounds on which to withdraw from the contract.

Unless otherwise quoted in any offer or price list, and unless otherwise agreed in writing between the Seller and the Purchaser, all prices shall apply on an “ex works” basis (Incoterms Revision 2000). If the Seller agrees to deliver the product to other location, the Purchaser shall bear all costs for transport, packaging and insurance.

All prices are exclusive of any applicable value added tax which the Purchaser has also to pay to the Seller.

 

4. Terms of Payment

Payments are to be made by the Purchaser within thirty (30) days of receipt of the invoice.

Payment may only be made by bank transfer; payments made by bill of exchange or by cheque will not be recognised as an appropriate means of payment.

The contracting parties may agree that the Purchaser shall open a documentary letter of credit at the Purchaser’s bank (or at a/another bank acceptable to the Seller). In such a case, it shall be stipulated that the opening of the documentary letter of credit shall be in accordance with the Uniform Customs and Practice for Documentary Letters of Credit, Revision 1993, as published by the ICC (ICC Publication No. 500).

Should the Purchaser not fulfil his payment obligations on the date payment is due, the Purchaser may at his discretion, without waiving any rights or relinquishing any claims:

           - withdraw from the contract or suspend any further deliveries
             to the Purchaser, or
           - debit the Purchaser interest on the unpaid amount
             amounting to 8 % per annum above the
             relevant base interest rate, until such time that full-payment
             has been effected. The Purchaser shall, however, be entitled 
             to prove that as a consequence of the default in payment
             no damages or significantly less damages were incurred.

Set- offs and the assertion of the right of retention by the Purchaser is only permissible for claims that are undisputed or have been upheld in a court of competent jurisdiction. Moreover, the Purchaser shall only be entitled to exercise his right of retention insofar as his counterclaim is based on the same contractual relationship Should the Purchaser assert his right of retention due to the existence of actual or asserted defects or deficiencies, such retention shall be limited to an amount necessary to cover the expenditure of repairing the alleged deficiencies, and such amount in proportion to the total debt shall not impair good faith. The Purchaser is entitled to avert the exercise of the right of retention through the use of collateral security, including the issuing of sureties.

 

5. Delivery

The products shall be delivered in such a way that the Purchaser can collect the products at any time at the Seller’s place of business, as soon as the Seller has notified the Purchaser that the products can be collected, or should another delivery location be agreed, by delivery of the products to that location.

Insofar as it concerns the delivery of bulk commodities, the Purchaser reserves the right to deliver up to 3% more or 3% less than that quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.

Insofar as a binding delivery time was agreed to in the contract, and insofar that the Seller has not effected delivery within the agreed (or extended) delivery time, the Purchaser may exercise the right, after prior written notice, to claim a reduction of 0.5 % per week (up to a maximum of 5%) of the price payable under the contract, unless it can be reasonable concluded from the circumstances of the particular case that the Purchaser has suffered no loss. This exclusion shall not apply if the was agreed to settle the business on a fixed date or if the delay was caused by gross negligence or intentionally by the Seller, the Seller’s agents or representatives or if there has been a breach of any other major contractual obligation on the part of the Seller.

Should the Seller fail to effect delivery within the agreed time, the Purchaser must give the Seller written notice of a final deadline, after whose expiry the Purchaser is entitled to withdraw from the contract. The Purchaser can demand compensation from the Seller in lieu of receiving the ordered goods.

Should the Purchaser be unable to accept the delivery on the date due, this does not release him from his obligation to pay the purchase price. In such cases, the Seller shall store the product at the Purchaser’s risk and cost. On request of the Purchaser, the Seller will insure the products at the Purchaser’s expense.

In all events of shortage of raw materials or loss of energy supplies, strikes, lockouts, traffic disruptions and actions of government or authorities as well as delivery delays caused by sub-suppliers and incalculable interruption to the Seller’s business operations due to, for example, loss of workforce through illness or epidemics, unforeseen breakdown of machinery, supplementary shortage of supplies, import and export restrictions, all cases of force majeure including mobilisation, war, riots, import bans due to trade embargoes and any other circumstances beyond the control of the Seller or his suppliers which hinder the Seller in fulfilling his contractual obligations in part or in total, the Supplier is hereby exonerated from each and every obligation to deliver for the overall duration thereof. For the above-mentioned scenarios, the delivery deadlines will be extended by a period of time equal to the duration of the event up to a maximum however of four (4) months.

After expiry of the four-month period, the Purchaser is entitled to withdraw from the contract without prejudice to any other grounds to rescind; any advance-payments will be refunded.

 

6. Transfer of Risk

Risk of damage to or loss of the products shall pass to the Purchaser as follows:

            - at the time of delivery if the products are to be
              delivered elsewhere than at the Seller’s premises
              or, at the time when the Seller offers delivery
              of the products if the Purchaser wrongfully fails to take
              delivery of the products,
            - at the time when the Seller notifies the Purchaser that
              the products are available for collection
              if the products are to be delivered at the
              Seller’s premises ex-works (Incoterms 2000).

 

7. Retention of Title

Irrespective of delivery and the transfer of risk or other provisions of these terms of delivery, ownership of the product shall not be transferred to the Purchaser as long as the purchase price has not been paid in full.

After termination of the contract the Seller shall have the right to demand the return of the product, to sell or otherwise deal with or dispose of all or any part of the goods in any manner which he deems fit.

Until the purchase price has been paid in full, the Purchaser shall be obliged to hold the goods as the Seller’s fiduciary agent and to keep them apart from his property and the property of third parties and to keep the goods properly stored, protected and insured and to label them as being the property of the Seller.

Until the purchase price has been paid in full, the Purchaser may use the goods in the course of customary business operations or resell it; however, the Purchaser shall be obliged to keep any fees (including any insurance payments) for the Seller and keep the money separate from his own assets and those of third parties. Any claims against third parties arising from resale of the goods or on the basis of other legal grounds (insurance payments, claims due to tort etc.), including all incoming payments into current accounts, are herewith assigned and transferred to the Seller, in full or in proportion to his share of co-ownership, as collateral by the Purchaser.

The Purchaser is granted revocable authorisation for collection of claims against third parties. The Seller is entitled to revoke said authorisation in the event that the Purchaser does not perform his obligations to pay, the Purchaser either runs into payment arrears with the Seller, or is subject to the opening of any insolvency proceedings. In such cases, the Purchaser is committed to disclosing to the Seller all the assigned claims, furnishing all the information required to collect the claims and notifying the third party debtors of the assignment. The latter may also be performed by the Seller.

Should the product be subject to further processing and should the further processing involve parts for which the Purchaser of the reserved property holds no ownership, the Purchaser of the reserved property shall acquire corresponding partial ownership. The same shall apply to cases where the Seller’s products are mixed with those of another party.

In the case of attachment of property by court authorities or any other intervention on the part of third parties, the Purchaser shall notify the Seller immediately so that the Seller may exercise his rights in a civil suit pursuant to Section 771 of the German Civil Procedure Code. Insofar that the Purchaser fails to comply with this provision, he shall be held liable for the damage incurred.

The Seller shall, on demand of the Purchaser, undertake to release any part of the collateral held in favour of the Seller if the value of the collateral exceeds the value of the claims being secured. The Seller shall exercise his discretion in deciding which collateral interests to release.

On request, the Purchaser is obliged to provide information about the respective status of the goods subject to retention of title. The Seller is granted irrevocable authorisation to inspect the goods subject to retention of title during normal office hours.

 

8. Warranties and Disclaimer

The Purchaser is obliged to inspect the products immediately upon receiving them as per Section 377 of the German Commercial Code and notify the Seller of any material defects immediately.

Claims by the Purchaser due to material deficiencies, are statute-barred one year after commencement of the limitation period. The statutory limitation periods shall apply in cases where a claim for damages is based upon acts of wilful intent or gross negligence.

The Seller warrants that all items delivered under this agreement are free from defects in material and workman- ship, conform to applicable specifications, and, to the extent that detailed designs have been furnished by the Purchaser, are free from design defects and fulfil the requirements of the Purchaser.

The Seller shall not be held liable for the goods being fit for a particular purpose unless he has otherwise expressly agreed to accept this liability.

The above warranty is given by the Seller subject to the following conditions:

             -  the Seller shall not be liable in respect of any
                defect in the goods arising from any design
                or specification supplied by the Purchaser;
              - the Seller shall not be liable under the above
                warranty if the total price due for the goods
                 has not been paid by the date of payment;
               - the above warranty does not extend to parts,
                materials or equipment manufactured by or
                on behalf of the Purchaser unless such warranty
                is given by the manufacturer to the Seller;
               - compensation in respect of the delivery of
                defective goods is excluded, if the defect
                does not represent a material deficiency;
              - compensation in respect of any
                unforeseeable damage at the time of the
                closing of the contract is excluded;
              - compensation in respect of indirect damage,
                i.e. damage which did not occur to the
                delivered product itself, is excluded. The Seller
                is not liable for any lost profits and other 
                financial losses.

This warranty does not cover defects in or damage to the products which are due to improper installation or use, misuse, neglect or any cause other than ordinary commercial application.

A warranty disclaimer on the part of the Seller does not apply for such damage which is caused by wilful intent or gross negligence or if there is any culpable violation of the essential contractual obligations.

The Purchaser is obliged to inspect the products on receipt for any damage and to immediately notify the Seller of any material defects discovered.

Should the products show deficiencies in their quality or condition, the Purchaser shall be entitled to request, at his sole discretion, either the rectification of the deficiencies or the delivery of faultless replacement products.

Insofar as the purchased goods exhibit a defect for which the Seller is accountable and the Seller has been notified of the defect, the Seller shall be entitled to either replace the goods free of charge or repair the goods. If the Seller is neither ready nor able to either repair or replace the goods, the Purchaser shall be entitled at his sole discretion to request either cancellation of the contract or for a reduction in price.

 

9. Additional Provisions

The Seller shall be entitled to alter or improve the product without having to notify the Purchaser in advance, provided that the alterations or improvements constitute neither a lasting limitation nor impairment to the form or function of the product.

These terms and conditions shall replace all other agreements previously concluded by the contracting parties either orally or in writing which shall become invalid upon the signing of this document.

These terms and conditions shall not be made available to third parties without the written consent of the contracting parties.

Each contracting party shall individually bear the costs for upholding this agreement.

 

10. Choice of Law, Jurisdiction

This agreement shall be subject to the law of the Federal Republic of Germany and both parties hereby declare themselves be in agreement with the exclusive jurisdiction of the court of law of the registered office of the Seller. The United Nations Convention on Contracts for the Sale of International Goods (CISG) shall not apply to the terms and conditions set out herein.

The Seller shall reserve the right to file suit with the court of law having jurisdiction over the Purchaser or with any other court of law that may have jurisdiction under national or international law.

 

Amended: October 2008

 

General Terms and Conditions for the Purchase and Delivery of Goods


1. Preamble

The present general terms and conditions for the purchase and delivery of import goods shall apply exclusively, unless they have been amended in an express written agreement between the two parties. The terms and conditions shall also apply even if the Purchaser accepts a delivery of goods or services from the Seller, being in full knowledge of the existence of the Seller’s divergent terms and conditions of sale which, however, do not constitute the basis for the contract of sale, .

Any agreement reached between the Seller and Purchaser contrary shall only be legally binding if the agreement has been set out by the parties in writing. Any additional terms or contractual clauses introduced by the Seller shall be deemed as having been rejected as long as the Purchaser has not given his written consent to the additional terms.

All future individual contracts concluded between the Purchaser and the Seller shall be based on the present terms and conditions – and all divergent general contractual terms shall be simultaneously excluded and rejected. These general terms and conditions of purchase and delivery shall only apply to contracts with trade customers.

 

2. Contract Conclusion

A contract of sale shall only be deemed as having been concluded when the Purchaser has sent a written declaration of acceptance within 14 days of receiving a quotation.

Weights and dimensions, quantities, prices, other descriptions and data as contained in catalogues, circulars, advertisements or price lists shall be merely approximate and shall not be binding for the Purchaser until they have been explicitly included in the contract. This data, which will be transmitted to the Seller prior to conclusion of the contract, shall remain the exclusive property of the Purchaser and may not be disclosed to third parties.

 

3. Purchase Price

The price stated in the purchase order shall be binding and based on Incoterm “DDP”. The quoted purchase price shall include the costs of carriage, packaging, transport insurance and the statutory value added tax.

 

4. Terms of Payment

Payment and delivery shall be effected in the manner and at the time as agreed between the parties in each individual case. Insofar as an agreement has not been otherwise reached in an individual case, payment shall normally be effected with 2% cash discount within 14 days of delivery and receipt of the invoice or net within 30 days.

The Seller can only offset undisputed or legally-proven claims.

 

5. Terms of Delivery

Delivery shall be effected on the date specified in the contract of sale or purchase order. Agreed delivery dates are binding.

The Seller shall be obliged to inform the Purchaser in writing if delivery is delayed.

If the Seller defaults on delivery, the Purchaser shall be entitled to demand compensation for all additionally-incurred costs (e.g. transport, insurance, storage etc.) from the Seller in writing, but no more than 10% of the total value of the order.

 

6. Transfer of risk

Insofar as not otherwise specified in the individual delivery contracts, the transfer of risk shall be effected in accordance with the Incoterms of the International Chamber of Commerce and Industry (Incoterms 2000). Unless otherwise agreed in individual instances, the clause DDP (delivery duty paid, Incoterms 2000) shall apply in all cases.

 

7. Warranty for Defects

7.1. Liability for Defects in Material

The Seller warrants that the goods delivered are free of defects, display the warranted properties and fulfil the requirements of the Purchaser.

The Seller’s liability for defects shall apply for a period of two years from the date on which the goods were delivered. All repairs or substitute deliveries shall likewise be covered by this warranty agreement as set out the present general terms and conditions for purchase and delivery. For defects notified within the limitation period, the period shall end no earlier than six months after assertion of the notice of defects. The supplier shall not object on the grounds of delayed notification (Arts. 377, 381, par. 2 German Commercial Code (HGB)) for all other than obvious defects Insofar as the purchased goods exhibit a defect for which the Seller is accountable and the Seller has been notified of the defect, the Seller shall be entitled at his own discretion to either repair the goods or replace them and the resulting costs shall be borne by the Seller. All substitute deliveries and repairs shall similarly be covered by this warranty agreement as set out in the general terms and conditions for the purchase and delivery of goods.

 

7.2. Legal Liability

The Seller warrants that the execution of the individual contracts of sale shall not lead to any violation of the law, particularly regarding compliance with statutory rules and regulations or other provisions issued by any official body.

 

7.3. Liability for Defects in Title

The Seller warrants that all objects governed by the contracts of sale are his full property and free of any conflicting third-party rights (such as liens, other creditors’ rights based on the assignment of claims, the transfer of goods for collateral, or other forms of collateral for loans, the sale of claims, lease-purchase arrangements etc.).

 

8. Transfer/Assignment

The Seller shall not be entitled to transfer either performance of the contract or assign his contractual rights in whole or in part to third parties without the prior written consent of the Purchaser. Upon request, the Seller shall provide the Purchaser with the names of his sub-contractors.

 

9. Additional Provisions

These terms and conditions shall replace all other agreements previously concluded for these lines of business by the contracting parties either orally or in writing which shall become invalid upon the signing of these general terms and conditions for the purchase and delivery of goods.

The rights arising from the relationship may not be assigned by any contractual party without the written consent of the relevant other party.

Each party shall bear their costs arising in connection with the performance of this contract themselves

 

10. Jurisdiction, Choice of Law

The place of jurisdiction shall be the court of law of the registered office of the Seller, or, at the discretion of the Purchaser, the general court of jurisdiction of the Seller. All legal relationships between the Purchaser and the Seller shall be governed by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the Sale of International Goods of 11. April 1980 as amended.

 

Amended: October 2008