22.02.2015

1.1. All deliveries, services, and product sales effected by us shall be governed solely by the Standard Terms and Conditions hereof (hereinafter referred to as the “Standard Terms”). Hereby, the customer’s conditions of purchasing are being contradicted. Any contract that is concluded between us and any customer for the purpose of fulfilling any order that has been placed has to be set down in writing.

 

1.2. Our bids, offers and proposals (hereinafter: “Offers”) are non-binding unless expressively specified by us as binding. Any graphics, descriptions, technical data or service descriptions that appear in our printed materials such as brochures, price lists, catalogs, circular letters and others that may also be part of our offers are non-binding.

A contract becomes binding by the timely acceptance of our written Offer within the given deadline or by the order confirmation sent by us stating the scope of the goods/services that we will be providing.

We reserve our title to any written document that is marked “confidential.” Any disclosure of such a document to third parties is expressly prohibited. We do not assume liability for the accuracy of technical data and any other information in other manufacturers’ brochures.

 

1.3. We reserve the right to modify technical specifications. The customer has to accept any possible discrepancies if they are reasonable for him. We reserve the right to modify our products and services insofar as such modifications do not interfere with the functionality of the goods or services.

 

2.1. In addition to our Standard Terms, the stipulations of our Offer are relevant to definitively define the scope and nature of our goods and services.

 

2.2. Our order confirmation specifies the goods to be delivered and the services to be rendered by us. Furthermore, it stipulates the payment conditions agreed upon with the customer as well as the terms of delivery and the customer’s acceptance of the goods/service delivered by us.

 

3.1. Method, amount and term of payment related to the goods/services to be delivered by us are specified in our order confirmation, and prices are quoted “ex works” including packaging.

 

3.2. The legally applicable value added tax (VAT) is not included in our prices and will be charged separately at the rate valid at the date of invoice. The quoted prices do not include any other possible legal charges and duties to the respective valid amount that might be due.

 

3.3. We reserve the right to increase our prices by a reasonable amount insofar as our cost of material and/or labor cost increase within the period between the date of issue of our Offer and the date of provisioning of our goods/services. On request, we prove evidence of such increase to the customer.

 

3.4. If it becomes known that the customer’s asset situation has deteriorated after the date of the contract conclusion, we are entitled to suspend fulfillment of our obligations until any amount due has been paid by the customer or the customer provides adequate surety. We reserve the right to cancel the contract in case the customer fails to effect payment “pay as paid” or fails to provide surety deposit within a reasonable period to eliminate the risk of non-fulfillment of the contract resulting from deterioration of the customer’s asset situation. Any arising costs are invoiced to the customer and due on receipt of invoice.

 

3.5. Invoices are to be paid 10 days net without deduction after date of invoice.  Payments first satisfy any interests and costs and then the amount due.

 

3.6. In case of late or non-payment by the customer, we are entitled to charge the customer default interests of 5 per cent points per annum above the Deutsche Bank discount rate. If we can prove evidence of a higher damage caused by the customer’s late or non-payment we are entitled to assert a claim.

 

3.7. The customer is only entitled to make a deduction from the total amount due insofar as any claim asserted by the customer is legally effective or uncontested, or accepted by us. Apart from this, any customer exercise of any right to withhold payment owing to any contested amount due is excluded.

 

4.1. All supply agreements have to be effected in writing. Delivery times start from the date of our order confirmation, subject to prior clarification of all technical data. Delivery dates are to be considered as non-binding approximate values unless otherwise expressly confirmed.

 

4.2. Any delivery dates have to be reasonably extended in the event of force majeure or any other interference beyond our control, that have substantial impact on our deliveries such as any delay in the provisioning of necessary goods/services from other vendors, any labor strike, any lockouts, or any operational disruptions. Insofar as any such disruption makes it permanently impossible or economically unfeasible for us to execute deliveries, we shall be relieved of our contractual obligation.

 

4.3. Part shipment can be admissible and may be invoiced separately, unless such deliveries are not economically useful for the customer.

 

4.4. The adherence to our delivery obligation is binding to us under the condition that the customer on his side duly and orderly meets his obligations.

 

4.5. In case a delivery delay occurs that can be attributed to the customer, the customer has to reimburse us for any damages and/or additional costs incurred that exceed the contractual price.

 

5.1. The risk is passing to the customer at the point of the goods’ dispatch at the very latest, even in case of part shipments or in case we assume other services like shipment or delivery and installation.

 

5.2. If requested by the customer the consignment will be insured on his account against theft, breakage, transport, fire and water damage and other insurable risks.

 

5.3. If shipment is delayed due to circumstances caused by the customer, the risk is passed to the buyer on the day the goods are ready for shipment. However, we are obliged to care for insurance upon the customer’s request.

 

6.1. Payment shall fall due on acceptance of the deliverables by the customer and shall mark the beginning of the warranty period. Partial acceptance may be an option, depending on the deliverables that have been provided. Any partial acceptance being effected will be without prejudice to the outcome of the definitive acceptance.

 

6.2. In case of deliveries the goods are accepted by the customer’s acceptance of the relevant consignment without reservation.

 

6.3. The customer may not refuse to accept any goods/services in case the goods/services only slightly defer from our order confirmation. Such minor anomalies have to be recorded in an acceptance report and will be eliminated by us in the context of warranty.

 

6.4. Insofar as the acceptance procedure brings to light any major non-conformance relative to our order confirmation, the customer shall set a reasonable period for us to rectify such non-conformance.

The acceptance procedure will be repeated on expiration of the period of rectification. In case the procedure is successful, the customer will formally declare that the deliverables have been accepted. In case any major non-conformance relative to our order confirmation is still existing on expiration of the period for rectification, the customer is entitled to either cancel the contract (in the case of part shipments only for the non-accepted part of the deliverables, insofar as the accepted deliverables are economically useful to the customer) or request the price to be reduced to a reasonable degree, to the exclusion of any other claim and subject to liability according to Article 9.

 

6.5. If the customer fails to formally declare that the deliverables have been accepted despite their in fact being accepted; or fails to carry out the acceptance procedure in a timely manner; or fails to issue a formal declaration of acceptance according to section 6.4, we shall be entitled to grant the customer a three week grace period to accept the goods. If the customer fails again, within this period of grace, to issue a declaration of acceptance or carry out the acceptance procedure, we consider the deliverables or partial quantities delivered by us as accepted by the customer.

 

6.6. Insofar as the customer defaults in the acceptance procedure, or if he breaches any contractual contributory obligation, we shall be entitled to require the customer to indemnify us for any damages incurred including additional expenses, as a result of such failure or breach. In this case the risk arising from any accidental destruction or deterioration of the deliverables will pass to the customer at this stage.

 

7.1. The validity of any customer warranty rights depends on the customer having duly fulfilled its obligations in respect to product testing and having given notice of defects as provided in Article 377 of the German Commercial Code (HGB). The warranty period starts at the date of acceptance, and in the case of part shipment at the date of the part shipment’s acceptance. The warranty period is 12 months, unless otherwise stipulated.

 

7.2. In the event a warranty claim is submitted, we shall be entitled to either repair or replace the product, in our discretion. Insofar as we fail to correct the problem within a reasonable period set by the customer in writing, the customer is entitled to either cancel the contract; but in the case of part shipments only those that can be partially accepted and only if the individually accepted part shipments are economically useful for the customer; or require us to reasonably reduce the contractual price. Any farther-reaching warranty claim of any kind whatsoever shall be excluded, insofar as not otherwise stipulated in section 8.

 

7.3. Any customer assignment of any warranty claim has to be subject to our prior written consent.

 

7.4. In case our assessment of a warranty claim reveals that the problem indicated by the customer is not covered by the warranty, the customer will be charged for such an assessment and/or any repair at the rates indicated on our respective valid price list; and for any third-party products or services purchased in connection with such claim.

 

7.5. Any customer complaints concerning delivered goods are excluded after their verification in the following instances: (a) if the delivered number of goods slightly exceeds or falls short of the ordered quantity; (b) if any delivered product is slightly out of tolerance relative to the relevant prevailing industry tolerances; or (c) if a relatively low number of defective goods are delivered, insofar as such defective goods are unavoidable in consideration of technical aspects. 

 

7.6. We are not liable for any defect in any third party product and/or service that is not delivered or provided by us.

 

8.1. We shall be obligated to effect indemnification for damages (regardless the respective legal basis) only insofar as:

- The damages refer to the absence of any guaranteed attribute.

- The conclusive liability is based on the Product Liability Act.

- We culpably breach a substantial contractual duty in a way jeopardizing fulfillment of the contract.

- The damages are caused by gross negligence or intention.

 

8.2. Our liability is limited to foreseeable damages insofar as we incur liability owing to breach of substantial contractual duty that is not attributable to gross negligence or intent.

 

8.3. Insofar as the customer is a businessperson within the meaning of the German Commercial Code (HGB), a juridical person under public law, or a special fund under public law, our possible liability is limited in accordance with the aforementioned as follows:

We do not accept liability for any consequential damages, consequential harm caused by a defect or any lost profit.

Any liability on our part for minor negligence, regardless of the respective legal basis including contractual default, impossibility or culpable default on any obligation to effect a repair or replacement, or any unlawful act is excluded, insofar as not otherwise stipulated above.

 

8.4. The warranty period is 12 months as from the date of passing of risk. The warranty period is a term of limitation and also applies to any consequential-damage claims, insofar as there is no enforcement of a claim based on an unlawful act.

 

8.5. Insofar as damage claims are excluded or limited pursuant to the provisions above, such an exclusion or limitation also applies to claims arising from unlawful act, and claims against our staff, employees, representatives, agents or mandatory.

 

9.1. We reserve the title to all delivered goods and services until full payment of all receivables arising from the business relationship with the customer, regardless of their nature and legal basis. In the case of outstanding invoices, any conditional title is taken for securing the balance carried forward. Any modification or processing of goods supplied by us to whom we still reserve title is effected on our behalf, without causing liabilities for us.

 

9.2. In the event of any breach of contract on the part of the customer, and in particular if the customer defaults on payment, we are entitled to take back the delivered goods/services. On the other hand this does not represent a cancellation of the contract unless we expressed this before in writing. Impounding of any goods by us is always standing for a cancellation of the contract. After taking back the goods we are entitled to make use of them. The proceeds from the sale of such goods/services shall be deducted from the amount owed by the customer, minus a reasonable working charge.

 

9.3. The customer is committed to handle the goods with due care and to insure them, on his own account, against fire and water damage, as well as theft. Such insurance has to cover the nominal value of the goods.

 

9.4. The customer has to notify us immediately in writing of any impounding or any other action by a third party so that we can take legal action according to Article 771 of the German Code of Civil Procedure (ZPO). If such third party is unable to reimburse us for the court costs arising from such a lawsuit, the customer has to indemnify us for such expenses.

 

9.5. The customer is entitled to resell the goods on the basis of a duly executed transaction. However, in such a case the customer hereby assigns to us the amount (including value added tax) of our definitively invoiced receivables arising from the proceeds of such sale to the customer’s customer or to any third party, regardless of whether the goods in question were sold after having been processed or without having been processed. The customer is also entitled to collect such receivables following said assignment, without prejudice to our right to collect any such receivables ourselves. However, we shall refrain from collecting any such receivables insofar as the customer meets his payment obligations as regards the relevant earned proceeds; is not in arrears on payment; and in particular has not filed for bankruptcy or conciliation proceedings or if suspension of payment is not existent. But if this is the case, we shall be entitled to require the customer to do the following: disclose to us the amounts of all assigned receivables and the debtors thereof; provide us with all information necessary to effect collection and all documentation related to any such collection; and notify the assignment to any debtor (third party).

 

9.6. Any processing or remodeling of purchased goods by the customer is always done on our behalf. If these goods are processed in conjunction with items that do not originate at us, we shall become partial owners of the resulting product in proportion to the ratio between the invoiced value of the goods and the value of the other items processed at the time of processing. The foregoing provisions concerning goods/services that are accepted with reservation shall likewise apply to any resulting product.

 

9.7. In case any goods are indivisibly combined with other items to which we do not hold title, we shall become co-owners of the resulting product in proportion to the ratio, at the time of combining, between the invoiced value of the goods and the value of the other items that were subject to combining. If combining is made in such a way that the customer’s elements can be justifiably regarded as the principal elements, the customer assigns shared title to us on a pro rata basis. The customer keeps the consequent sole title or joint title for us.

 

9.8. Furthermore, the customer is assigning to us the receivables necessary to secure any claims against the customer that are lodged against a third party by virtue of any combining of the purchased goods with a property.

 

9.9. Upon request of the customer, we commit ourselves to release any surety accruing to us insofar as the value of our surety exceeds the amount of the secured receivables by more than 20%. The choice of the securities to release is incumbent upon us.

 

10.1. Any assignment of any rights and/or claims arising from this contract is subject to prior written consent from the other contractual party. This does not apply for any assignment of our claims on remuneration.

 

10.2. This contract replaces any previous agreement between the parties concerning the subject matter hereof. Any changes in or additions to this contract shall be effected in writing only. This applies as well to possible waiver of the requirement pertaining to documentation in writing.

 

10.3. Any failure to exercise a right according to these regulations does not constitute forfeiture of the right to exercise any such right in the future.

 

10.4. All legal relationship existing between the parties are exclusively governed by German law.

 

Insofar as the customer is a businessperson, legal person under public law, or a special fund under public law, any dispute arising from or in connection with this contract will be adjudicated solely in the courts of 66606 St. Wendel. The foregoing shall be without prejudice to any exclusive statutory place of jurisdiction. We furthermore reserve the right to file a law suit or take any other legal action at the general place of jurisdiction or in the city of the customer’s head office.