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I.  Relevant Terms

 

 

1.                          These delivery and payment terms shall apply to all business transactions with the orderer or other principals (hereinafter: “Orderer”), even if they are not mentioned in later contracts. They shall also apply if the Orderer refers to their own business terms, in particular when submitting their PO or at any earlier or later date, unless these were explicitly consented to in writing. Other terms shall thus not become content of the contract either even if we do not explicitly object.

 

2.                          By placing an order with us, the Orderer shall be deemed to acknowledge our delivery and payment terms.

 

3.                          These delivery and payment terms shall only apply towards entrepreneurs, legal entities under public law or special funds under public law in the sense of section 310 (1) BGB (German Civil Code).

 

 

II.  Offer and Contract Conclusion

 

 

1.                          Our offers and quotations shall always be subject to change and non-binding. They must be accepted by the Orderer in writing (order placement).

 

2.                          Orders placed verbally or by phone shall become effective only by our written confirmation. Modifications, amendments or other additional agreements to the order must be confirmed by us in writing as well.

 

3.                          Drawings, illustrations, dimensions, weights or other data shall be binding for the execution of the order only if this is explicitly agreed in writing. We reserve rights of ownership and copyrights to illustrations, drawings, calculations and other documents; they must not be made accessible to third parties without our explicit written permission.

 

 

III.  Prices and Terms of Payment

 

 

1.       All prices shall be net prices ex works plus the statutory VAT and exclusive of packaging.

 

2.       We reserve the right to reasonably raise our prices in line with the cost increases if cost increases occur after the conclusion of the contract, especially due to collective agreements or increases in material prices. We shall furnish proof of these to the Orderer upon request.

 

3.       The deduction of cash discount shall require a special written agreement. Unless provided for otherwise in the order or order confirmation, the price shall be due for payment without deduction within 20 days from receipt of the invoice.

 

4.       Any furnishing of cheques and bills of exchange shall be regarded as payment only after redemption and final crediting. The receipt of bills of exchange shall always require a prior written agreement with us. Where bills of exchange and cheques are accepted, the banking discount and collection charges shall be invoiced; they are to be paid immediately in cash. Further costs due to any furnishing of cheques and bills of exchange shall be at the Orderer’s expense as well.

 

5.       Offsetting shall be permissible only against receivables of the Orderer that are undisputed or have been determined without further legal recourse. The Orderer may assert a right to refuse performance or right of retention only if their counterclaims underlying the right to refuse performance or right of retention are based on the contract or are undisputed or have been determined without further legal recourse.

 

6.       The Orderer must effect a reasonable advance payment upon request.

 

 

7.       Subject to section 354a HGB (German Commercial Code), assignments of  receivables by the Orderer shall require our written consent to become effective.

 

8.       As long as the Orderer asserts material defects, the statute of limitations of our remuneration claim shall be suspended.

 

9.       Any claim for rectification of the invoice must be asserted by the Orderer in writing and no later than one week after receipt of the invoice; otherwise, the invoice shall be deemed recognised.

 

10.   In case of payment arrears, we shall be entitled to make further deliveries conditional upon full removal of the payment arrear. In addition, we shall be entitled to refuse our performance if a circumstance becoming known to us after conclusion of the contract causes us to worry about not receiving the Orderer’s counterperformance in full and in good time, unless the Orderer effects the counterperformance or provides adequate security.

 

 

IV.  Delivery and Execution Time

 

 

1.       Delivery and execution dates shall be valid only if they are explicitly confirmed by us in writing.

 

2.       The delivery period shall begin upon dispatch of the order confirmation, but not before the provision of any document, approval and clearance to be furnished by the Orderer, where appropriate, as well as before receipt of an agreed down payment; it shall thus require, inter alia, prior clarification of all technical questions.

 

3.       The agreed delivery and execution periods shall be binding for both parties. They shall be extended by a reasonable period if the Orderer falls into arrears with their obligations towards us, hence not properly meeting their own obligations.

 

4.       The delivery period shall be deemed complied with if readiness for dispatch has been notified or the delivery object has left the plant before its expiry.

 

5.       The delivery period shall be extended in case of force majeure as well as measures under labour disputes, in particular strike and lockout, as well as upon occurrence of other unforeseen impediments, which are not attributable to us and are beyond our control, e.g. war, trade restrictions, operational disruptions or delays in the delivery of essential materials, provided that such impediments demonstrably have a significant impact on the delivery of the delivery object. This shall also apply if the circumstances occur on the part of sub-suppliers. The delivery period shall be extended in line with the duration of such measures and impediments. The aforementioned circumstances shall not be attributable to us either if they occur during an already existing delay. In important cases, we shall notify the Orderer of the start and end of such impediments without delay.

 

6.       The Orderer shall be entitled to rescind only if they send a written reminder about the delivery and execution in the aforementioned cases after expiry of the agreed, where appropriate extended delivery and execution period and our failure to effect such delivery and execution to the Orderer within a reasonable grace period to be set after receipt of the Orderer’s reminder. In the case of any delivery and execution period determined by the calendar, the grace period to be set shall begin with its expiry. The circumstances specified under no. 5 shall also entitle us to rescind the contract in whole or in part due to the part not yet fulfilled.

 

7.       We may claim 25% of the price without deductions as damages due to non-fulfilment, for default of acceptance or breach of other cooperation duties, unless the Orderer proves that no damage or no damage in the amount of the lump sum was incurred. As for the rest, as well as in the case of custom-made products or special deliveries, the assertion of higher damage to be proven, including any extra expenses, shall remain reserved to us.

 

8.       The risk of accidental destruction or accidental deterioration of the delivery or purchase item shall pass to the Orderer at the point in time when they come into default of acceptance.

 

 

9.       We shall be authorised to partial deliveries to the extent that these are reasonable for the Orderer.

 

10.   If the Orderer incurs any damage due to a delay culpably caused by us, they shall be entitled, to the exclusion of further claims, to claim compensation of a maximum of 0.5% for every completed week of delay, but not exceeding a total of 5% of the price for such part of the deliveries that could not be put into useful operation due to the delay, provided that the Orderer proves that the damage incurred by them as a result of the delay totalled at least this amount. As for the rest, clause XI shall apply in its entirety.

 

11.   The Orderer shall be obliged to make a statement upon our request within a reasonable time limit as to whether they rescind the contract due to the delay or insist on the delivery.

 

 

V.  Delivery Scope

 

 

1.       The delivery scope shall be governed by our offer or else, where appropriate, by our written order confirmation.

 

2.       Any changes in design or form that are attributable to the improvement of the state of the art or to requirements of the legislator shall remain reserved during the delivery time, unless the delivery object is substantially modified and the modifications are reasonable for the Orderer.

 

 

VI.  Cancellation Costs

 

 

If the Orderer unjustifiably rescinds the placed order, we may claim 25% of the sales price for the costs incurred by handling the order and for lost profit without prejudice to the possibility of asserting higher actual damage. The Orderer shall be reserved the right to furnish proof of lower damage.

 

 

 

VII.  Packaging and Dispatch

 

 

1.                          Packaging shall become the Orderer’s property and shall be invoiced by us. Postal and packaging charges shall be invoiced separately. The type of dispatch shall be selected at reasonable discretion.

 

2.                          The deliverer shall insure deliveries against the customary transport risks at the Orderer’s request and expense.

 

 

VIII.  Acceptance and Passage of Risks

 

 

1.       The Orderer shall be obliged to accept  the  delivery  object.  Unless  agreed  otherwise (delivery by us), handover shall be effected “ex works”.

 

2.       If the Orderer remains in arrears with accepting the purchase  object for  more than  14 days from receipt of the notice of provisioning in a wilful or grossly negligent manner, we shall be entitled, after setting a grace period of further 14 days, to rescind the contract or to claim damages (clause IV, 7). Setting of a grace period shall not be required if the Orderer seriously or definitely declines acceptance or is obviously unable to pay the purchase price within this period as well.

 

3.       The risk shall pass to the Orderer no later than upon dispatch or collection of the delivery object, even if partial deliveries are performed or we have exceptionally undertaken further performances in a given case, for example the utilisation costs or delivery per order. If the Orderer refuses acceptance of the delivery object, the risk of accidental destruction or accidental deterioration of the delivery object shall pass to the Orderer at the time of refusal.

 

4.       The Orderer must accept delivery objects even if they exhibit insignificant defects.

 

 

IX.  Material Defects

 

 

1.       The Orderer must notify obvious or incorrect deliveries in writing without delay, but no later than within 5 workdays after receipt of delivery. Notice must be given prior to any further use in any case. Any defects that cannot be discovered within this period even with careful inspection must be notified to us in writing immediately after their discovery. If the Orderer fails to notify defects in good time, the goods shall be deemed approved in view of the defect.

 

2.       To the extent that a defect in the delivery object is attributable to us, we shall assume liability for defects in delivery objects as follows:

 

a)   The Orderer may claim cure (removal of the defect or delivery of a defect-free item) at our option. If we are unable to perform cure or cure is delayed beyond reasonable time limits for reasons attributable to us or fails despite repeated attempts, the Orderer may claim reduction in lieu of cure after setting a time limit or rescind the contract.

 

In the event of removal of defects, we shall bear all expenses required to remove the defect, unless these increase by the delivery object having been transported to any location other than the Orderer’s branch. This shall not apply if cure is possible only at unreasonable costs.

 

b)   Natural wear and tear shall be excluded from the liability for material defects in any case. This shall also apply to minor deviations from the agreed condition, minor impairments of the usability or deviation from the customary use in case of natural wear or damage arising after the passing of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials or special external influences not agreed under the contract. If the Orderer or a third party improperly performs modifications, overhaul work or other interventions, no claims for defects shall exist for these and the resulting consequences either.

 

3.       We shall provide technical advice to the best of our knowledge and skills. Unless agreed otherwise, however, the advice shall be non-binding and shall not exempt the Orderer from their own tests and trials. The Orderer shall be responsible for compliance with legal and official regulations when using our goods. Details of delivery scope, dimensions, weights, materials, appearance and performances shall serve to characterise the delivery object and shall not constitute any suitability for use. Such suitability must be explicitly agreed in writing. Unless explicitly agreed, we shall not provide any guarantees, particularly not for condition, intended purpose, durability, etc.

 

4.       The Orderer may have recourse to us as per section 478 BGB only to the extent that they have not made agreements with their purchaser beyond the legal claims for defects. The scope of the Orderer’s recourse claim shall likewise be governed by the regulations of these terms and conditions.

 

5.       In the event of ascertained defects, the Orderer may withhold payments to the extent that this is reasonably proportionate to the ascertained defects. The Orderer may withhold payments only, however, if there is absolutely no doubt as to the legitimacy of the notice of defects asserted without delay. If notice of defects is given wrongfully, we shall be entitled to claim compensation from the Orderer for the expenses incurred for us.

 

6.       Claims for defects for an item that has been used for a structure in line with its customary application and caused its defectiveness shall come under the statute of limitations within 5 years from the passing of risk. As for the rest, the statute of limitations of the Orderer’s claims for defects shall be one year, calculated from the statutory start of the statute of limitations, subject to the provisions below. If we maliciously concealed a defect, any damages claims shall be governed by the legal time limits. The legal time limits shall also apply to the statute of limitations for any damages claims of the Orderer due to defects if we have acted with intent or gross negligence or the damages claim is based on any injury to life, limb or health or we  are liable under the Produkthaftungsgesetz (Product Liability Act).

 

XI.  Retention of Title

 

 

1.       The delivered goods shall remain our property until any and all receivables arising or even originating only from our business relation, including all accessory receivables, have been paid in full and the bills of exchange or cheques furnished to that end have been redeemed.

 

2.       If the Orderer acts contrary to contract, in particular in case of default of payment, we shall be entitled to take-back after dunning and the Orderer shall be obliged to surrender.

 

3.       The assertion of the retention of title as well as the attachment of the delivery objects by us shall not be regarded as rescission of the contract, unless this is explicitly declared by us in writing.

 

4.       The Orderer shall be entitled to resell the delivery objects in the ordinary course of business during the existence of the retention of title. They shall, however, already now assign to us in the amount of  the  purchase  price  agreed  between  us  and them (including VAT) all receivables accruing to them from the realienation, irrespective of whether the delivery objects are resold without or after processing. We shall accept the assignment. The Orderer shall be empowered to collect these receivables after their assignment. This shall not affect our authority to collect the receivables ourselves, but we undertake not to collect the receivables as long as the Orderer properly meets their payment obligations, is not in default of payment and no case of clause III. 10 exists. If this is the case, however, we may require the Orderer to notify us of the assigned receivables and their debtors, to provide all details required for the collection, to hand the related documents out and to communicate the assignment to the debtors (third parties).

 

Referring to the existing retention of title, the Orderer must also subject their customer to the reservation that title shall not pass to the customer until they have met their payment obligations in full.

 

5.       The processing or remodelling of the delivery object by the Orderer shall always be performed for us. If the delivery objects are combined with other objects not belonging to us, we shall acquire joint title to the new item at the ratio between the value of the delivery objects and the other objects at the time of combination.

 

6.       The Orderer must neither pledge nor assign the delivery objects as security. In case of attachments as well as seizures or other disposals by third parties, the Orderer must notify us thereof in writing without delay and must provide us with all details and documents required to safeguard our rights. Enforcement officers or third parties must be made aware of our title.

 

7.       We undertake to release the collaterals due to us at the Orderer’s request to the extent that the value exceeds the receivables to be collateralised by more than 20%, where these have not been settled yet; the selection of the collaterals to be released shall be incumbent upon us.

 

 

XI.  Liability

 

 

1.       We shall be liable for damage for any legal ground whatsoever only

a.          to the extent that our legal representatives or vicarious agents have acted with intent or gross negligence,

b.          for injury to life, limb or health,

c.           for the culpable breach of essential contractual duties,

d.          for defects which have been maliciously concealed or whose absence has been guaranteed by us or

e.          to the extent that we are liable under the Product Liability Act.

 

 

2.       Where essential contractual duties are breached by slight negligence (to the exclusion of wilful intent and gross negligence), however, our liability shall be limited to the contract-typical, reasonably foreseeable damage.

 

3.       Any change in the burden of proof to the Orderer’s detriment shall not be associated with the regulations above.

 

 

XII.  Impossibility, Contract Adaptation

 

 

1.                          If delivery is impossible, the Orderer shall be entitled to claim damages in accordance with clause XI above, unless we are not responsible for the impossibility. The Orderer’s damages claim shall be limited to a maximum of 10% of the value of such part of the delivery that cannot be put into useful operation due to the impossibility, unless liability is unlimited as per clause XI. The Orderer’s right to rescind the contract shall remain unaffected.

 

2.                          Where unforeseeable events not attributable to us, for example in the  sense  of clause IV. 5, substantially change the economic importance or the content of the delivery or considerably affect our business, the contract shall be reasonably adapted according to the requirements of good faith. Where this is economically unreasonable, we shall have the right to rescind the contract without having to pay damages. If we want to make use of this right of rescission, we shall notify the Orderer thereof even if an extension of delivery had initially been agreed with them.

 

 

XIII.  Place of Performance and Jurisdiction

 

 

1.       Place of performance shall be the deliverer’s seat.

 

 

2.       The agreed place of jurisdiction for all disputes arising from the contractual relationship shall, at our option, be the deliverer’s place of general jurisdiction or the Orderer’s place of general jurisdiction. The same shall apply if the Orderer’s seat or habitual residence is unknown at the time the action is filed or they relocated their seat or habitual residence to a foreign country. This shall also apply to actions on cheques and bills of exchange.

 

3.       German law shall apply exclusively to the exclusion of the United Nations Convention on Contracts for the lnternational Sale of Goods (CISG), even if the Orderer’s corporate seat is abroad.

 

 

XIV.  Miscellaneous

 

 

Transfers of rights and obligations of the Orderer from the contract concluded with us shall require our written consent to become effective.

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