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I. Scope of Applicability 1. Our General Terms and Conditions for Sales, Deliveries and Payments become part of any contract of sale concluded with our purchasers, unless otherwise expressly agreed. Our General Terms and Conditions for Sales, Deliveries and Payments apply exclusively; we do not acknowledge any terms conflicting with or deviating from our General Terms and Conditions for Sales, Deliveries and Payments or from statutory provisions, unless we have expressly consented to their applicability in writing. This shall also apply, if we have not expressly objected or if we have rendered deliveries without reservations. 2. Any verbal subsidiary agreements made prior to the conclusion of the contract deviating from our General Terms and Conditions for Sales, Deliveries and Payments shall only be valid, if they are confirmed by us in writing. II. Conclusion of Contract 1. Unless otherwise expressly agreed, documents enclosed with an offer such as drawings, illustrations, technical data, references to technical norms and statements in advertising material are researched to the best possible degree, but only approximately proper. Tolerances upwards and downwards are possible and permissible. 2. Our contractual offers are always made without engagement. Agreements become binding only through our written order confirmation or our delivery. We may submit our order confirmation within 14 calendar days after submission of the order of the purchaser. Until the expiration of this time period, orders are irrevocable. Our silence does not establish any reliance on a conclusion of contract. If the purchaser receives our order confirmation not in time, he shall inform us thereof without undue delay. 3. If a confirmation letter from the purchaser differs from our order confirmation or if it expands or restricts the latter, the purchaser shall clearly emphasize the modifications as such. 4. Correspondence shall be carried out with our competent department. Any modification of our order confirmation requires a written confirmation of our competent department to be effective. III. Prices and Payments 1. Our prices are “ex works” and do not include packaging, freight, customs duty and insurance. The value-added tax has to be added. 2. We are entitled to increase the prices agreed upon at the time of conclusion of the contract accordingly, if the date of delivery is to be later than 4 months after the time of the conclusions of the contract and if expense factors (e. g. material costs, wages) that have been the basis of the price calculation at the time of the conclusion of the contract have changed. This shall not apply, in the case that our purchaser directly, after subsequent processing or through a distributor sells the goods to a consumer, without our purchaser being entitled to pass on the price increase to its purchaser. Is the price increase permissible, our purchaser will be entitled to rescind the contract, if the prices increase by more than 5 %. 3. The payment shall be done cash, via cheque or bank or giro transfer. In the case of money transfer, only the credit entry into our account shall be considered as payment. The acceptance of cheques is done on account of payment. In the case of the acceptance of a cheque, only the encashment of the cheque shall be considered as payment. We expressly reserve the right to refuse the acceptance of a bill of exchange. The acceptance of bills of exchange is done on account of payment. In the case of the acceptance of a bill of exchange, only its encashment shall be considered as payment. Banking, discount and collection expenses shall be borne by our purchaser and be immediately due. Invoices shall be issued on the day of delivery; if the goods are to be collected by the purchaser, the day of making the goods available for collection shall be deemed to be the day of delivery. Invoices shall be paid within 14 days of the invoice date with a 2% cash discount or within 30 days net. 4. In the case of default in payment, interest in the amount of the respectively common bank-rates for overdraft credits is charged, at least in the amount of the statutory provisions. 5. In the case of a default in payment or if our claims are endangered by a material deterioration of the purchaser’s financial circumstances, we will have the right to accelerate the maturity of our claims or demand adequate securities; this shall not apply, if these circumstances have or should have been known to us at the time of the conclusion of the contract. In this case, we have particularly the right to carry out any outstanding deliveries against prepayment or against provision of adequate security only. The following incidents shall particularly, but without limitation, be regarded as a material deterioration of the purchaser’s financial circumstances and as an endangerment of our claims of payment: - request to open insolvency proceedings against the assets of our purchaser; - stoppage of payments by our purchaser; - changes in the legal relationships of our purchaser; - not on schedule encashment of bills of exchange or cheques of our purchaser; - delay in payment by more than 60 days. Our purchaser may put in counterevidence that no deterioration in its financial circumstances has occurred and our claim for payment has not been endangered. Should our purchaser – upon an adequate period of time granted by us and upon our offer of immediate delivery – not meet our request to pay the purchase price in the abovementioned form or to provide security, we will be entitled to rescind the contract. 6. The right to set off shall only be granted insofar as the counterclaims are undisputed or established with legally-binding effect. 7. A retention right may be exercised only insofar as the counterclaims are undisputed or established with legally-binding effect. Furthermore, the counterclaims on which the retention right is based must derive from the same contractual relationship as our claim and have to be in an adequate proportion with it. IV. Delivery and Shipment 1. Terms of delivery can be agreed upon bindingly or without obligation. A pre-contractual agreement on terms of delivery is only valid, if it is made in writing. 2. Proper and timely self-delivery is reserved. 3. Unforeseeable interruptions of operation, which occur after the conclusion of the contract or become known thereafter, such as strike, lockouts, war, riot, shortage of raw materials, machinery defects, administrative measures or other cases of force majeure that are not based on our fault and that can not be influenced by us applying even the greatest degree of care, prolong the terms of delivery for the time of the duration of their existence, up to a maximum of 6 months. We will notify our purchaser of interruptions of operations of the aforementioned kind and other cases of force majeure, which will presumably last longer than 8 weeks. Irrespective of other statutory rights to rescind, our purchaser has the right to rescind the contract, if the terms of delivery agreed upon have been deferred for a period of at least 6 months due to circumstances laid down in clause IV., 3. This right shall be exerted by registered mail and be subject to a 14-day time period, during which we are entitled to a complete or an on-loan delivery. If due to the circumstances laid down in clause IV., 3 the delivery becomes permanently impossible for us, we will be released from the obligation to deliver. In any of the abovementioned cases, the purchaser shall not be entitled to claim damages. 4. In the case that we exceed a non-binding term of delivery by more than 6 weeks, our purchaser may demand us in writing to render the delivery within an appropriate period of time, which shall be stated exactly. This time period shall then become binding. 5. Should the purchaser not accept the goods offered to him in accordance with the contract for reasons of his default, we may, irrespective of any further rights, after expiration of a further extension of time granted by us, store the goods at the risk and the expense of the purchaser at our premises, a stock-keeper or a carrier. Moreover, we are entitled but not obliged to grant our purchaser in writing an appropriate further extension of time combined with the information, that after the expiration of this time period we will refuse to render the delivery. After this time period has been unsuccessfully expired, we are entitled to rescind the contract via a written declaration or demand damages in lieu of performance. The granting of a further extension of time shall not be necessary, if the purchaser refuses the acceptance of our goods earnestly and finally or if it becomes apparent that even within an further time extension he will not be capable to accept the goods. If we demand damages in lieu of performance, a lump-sum of 20 % of the purchase price shall apply; claiming damages in excess thereof is not precluded by this provision. The purchaser may prove that a lower damage has been suffered by us. 6. Regarding any contracts, the passing of risk to the purchaser takes place with the handing over of the goods to a shipper or freightcarrier, or after dispatching the warehouse of the delivery factory the latest. 7. After consulting our purchaser, we are entitled to partial deliveries, unless the acceptance of partial deliveries is not reasonable for our purchaser considering our situation and the legitimate interests of the purchaser. 8. Call-off orders shall be limited in time at the time of the conclusion of the contract. The time limit for the acceptance of the goods may not exceed 6 months; the time limit for the initiation of the acceptance has to be agreed expressly upon at the time of the conclusion of the contract. We are entitled to produce cohesively the entire order quantity. Any changes requested by our purchaser can not be considered after placing of the order, unless otherwise expressly agreed. V. Default in Delivery 1. In the case of default in delivery, our liability shall be determined by the legal provisions, subject to the following conditions: we shall only be liable for direct damages foreseeable at the time of the conclusion of the contract, limited to the value of the goods delivered by us. We shall not be liable for loss of profit, downtime costs, loss of use and other indirect losses or damages. A defective delivery shall not be deemed to be a default in delivery. This limitation shall not apply if we act with intent or gross negligence or in the case of any other mandatory liability. The provisions above do not lead to a shift of the burden of proof. 2. Upon our request the purchaser shall declare within an appropriate period of time whether he will rescind the contract due to a default of delivery or will insist on delivery. |
VI. Retention of Title 1. Regarding the delivered goods, we reserve our right of title until the fulfillment of all of our claims of payment against the purchaser. The purchaser is obliged to treat these reserved goods with care and to sufficiently insure them at full replacement value against theft, breakage, fire, water, and other damage at his cost and shall prove this to us upon request. The purchaser authorizes us already now to pursue all compensation claims under such insurance policies. 2. Irrespective of our retention of title our purchaser is entitled to sell or process the reserved goods within the due course of his business operations (see clause VI., 3.). The transfer by way of security or the pledging of the reserved goods for the benefit of third parties without our consent is excluded; our purchaser is obliged to notify us about distraints of the reserved goods by third parties immediately. 3. Our purchaser’s authority to sell the reserved goods within the due course of his business operations ceases with the occurrence of a material deterioration of our purchaser’s financial circumstances. As to when a material deterioration of financial circumstances occurs, clause III. 5 applies. In this case, our purchaser is obliged to return the reserved goods to us upon first demand. For returned reserved goods we credit to our purchaser those proceeds that we have achieved pursuant to best possible realization (sec. 254 German Civil Code). The request for returning the reserved goods shall be deemed to be a rescission of the contract. 4. The claims of our contractual partner deriving from the sale of the reserved goods will with immediate effect be assigned to us up to the amount of the value of the reserved goods for securing any of our payment claims deriving from our business relation. Our purchaser’s authority to sell the reserved goods is subject to the transfer of the claims of payment arising therefrom to us. Any pre-pledging of these claims for the benefit of third parties and any assignment of these claims to third parties without our consent shall be excluded. Our purchaser is obliged to notify us about any distraint of these claims by third parties immediately. We shall not collect the claims assigned as long as the purchaser meets his payment obligations. Upon our request our purchaser is obliged to name the garnishees and notify them about the assignment. The processing or alteration by the purchaser of the goods delivered by us shall always be done on our behalf. If the delivered goods are being processed with other goods not owned by us, we will acquire the co-ownership of the new goods to the amount which the value of our good relates to the value of the other processed goods at the time of processing. For the goods emerging after processing, the same applies as for goods delivered under retention of title. Should our goods be blended inseparably with other goods not owned by us, we shall acquire the co-ownership of the new goods to the amount which the value of our goods relates to the other goods blended at the time of blending. Should the blending takes place in a way that our purchaser’s good is regarded as the principal good, it shall be agreed that our purchaser transfers the co-ownership to us on a pro-rata basis. Sole-ownership or co-ownership emerged in that way shall be kept by our purchaser for us. 5. Should the value of the securities assigned to us exceed the value of our secured claims by more than 10 %, we shall upon the purchaser’s request release an appropriate part of our security rights. 6. We reserve the rights to ownership, use, design patents, patents, trademarks, copyrights, personal rights and any other industrial property rights exceeding the scope of delivery, especially concerning the illustrations, drawings and other documents, designs, suggested designs, templates, worksheets, forms, copyrights, know-how, calculations and software which we provided in physical or electronic form. 7. In the case of a material deterioration of the financial circumstances of our customer (clause III. 5 applies), our purchaser shall be obliged to immediately provide us with a list of reserved goods still in his possession and a list of his claims from the resale of reserved goods with copies of the relevant invoices. VII. Liability for Defects 1. We shall not be liable for non-material defects of quality. 2. The purchaser is obliged to carefully examine our deliveries. This includes a probational processing of the goods, especially in cases where a defect of quality of the good can only be detected while processing it. Notices of defects shall be made in writing. Minor deviations, which can not be avoided technically or that are customary in trade may not be objected by our purchaser. 3. With regard to apparent defects a notice of defect shall only be considered, if it is received by us in writing within 10 days after the goods have been received. With regard to hidden defects a notice of defect shall only be considered if it is received by us in writing within 10 days of the defect’s detection. Goods not objected to within these time limits shall be regarded as approved. 4. Goods objected to shall only be reshipped with our permission; if, upon a notice of defects including an announcement of reshipment, we do not respond within 10 days, the purchaser shall be entitled to reship the goods without our permission, without this being an acknowledgement of the notice of defects. 5. After receiving the goods objected to, we provide warranty at our choice by means of immediate remedying of the defect or delivering new goods free of defects provided that the objection made by our purchaser has been legitimate. 6. The defects liability period shall be 12 months commencing according to the statutory provisions. This shall not apply to the extent that statutory law prescribes mandatory periods, inter alia, pursuant to sec. 438 para. 1 no. 2, para. 3, sec. 479 para. 1 and sec. 634a para. 1 no. 2 of the German Civil Code. 7. Claims of the purchaser because of expenses arising from the subsequent performance, especially costs of transportation, travel, labor and material shall be excluded should the increase in expenses have occurred due to the fact that the delivered goods have subsequently been transferred to another location than the purchaser’s branch office, unless such transfer is in line with the intended use. 8. The purchaser shall declare upon our request within a reasonable period of time, whether he rescinds the contract because of a material defect of quality or continues to insist on delivery . 9. Recourse claims of the purchaser against us according to sec. 478 Germans Civil Code shall only apply, if the purchaser has not made any agreements with his purchaser exceeding the statutory rights relating to defects of quality. 10. We shall be liable for damages and reimbursement of expenses only according to the provisions of clause VIII. VIII. Damages and Reimbursement of Expenses 1. We shall be liable for damages and reimbursement of expenses solely based on the statutory provisions, subject to the following conditions: This shall apply to claims for damages in addition to performance and in lieu of performance, irrespective of the legal basis – particularly due to defects, violations of duties under the obligatory relationship, and tort – and also to the reimbursement of futile expenses. However, the provisions pertaining to default in delivery (clause V.) shall have priority. 2. We shall be liable for intentional and grossly negligent conduct, while the liability shall be limited in the case of gross negligence to the compensation of contractually typical and foreseeable loss. 3. Beyond this, no liability is assumed for damages caused by the delivered goods to legal interests of the purchaser or third parties, e.g. damage to other objects, loss of profit and financing costs, as well as indirect losses, e.g. due to plant interruptions. 4. The above restrictions of clause VIII. do not apply, if liability under the Product Liability Act (Produkthaftungsgesetz) or in case of an injury of life, body, or health, or any other mandatory liability applies. Furthermore, these restrictions shall not apply to any culpable violation of a material contractual duty, the liability is insofar limited to compensation of contractually typical and foreseeable loss. Material contractual duties are in particular those, which are required in order to achieve the purpose of the agreement or the fulfillment of which enable the proper performance of the agreement in the first place and on the adherence to which the purchaser may rely. 5. The provisions above shall not result in any shift in the burden of proof. 6. The period of limitation pursuant to clause VII. 6. applies to any claims for damages and reimbursement of expenses in case of defects of the goods; for any other claims for damages and reimbursement of expenses a limitation period of 18 months, commencing according to the statutory provisions, applies. 7. To the extent that our liability is limited, this shall also apply to the corresponding personal liability of our employees, auxiliary persons, and legal representatives. IX. Applicable Law The legal relations between our purchaser and us shall solely be governed by the law of the Federal Republic of Germany excluding the UN Convention on the International Sale of Goods (UN-CISG) of April 11, 1980. X. Place of Fulfillment and Place of Jurisdiction 1. Place of fulfillment and performance of any deliveries and payments shall be Mönchengladbach, Germany. 2. Exclusive place of jurisdiction, including legal proceedings related to bills of exchange and cheques, shall be Mönchengladbach, Germany, if the purchaser is a registered trader, a legal person of public law or a public law special property. However, we reserve the right to sue the purchaser before the courts of his general place of jurisdiction. XI. Miscellaneous 1. Should a provision of these General Terms and Conditions for Sales, Deliveries and Payments or a provision contained in other agreements be or become ineffective, this shall not affect the effectiveness of the other provisions. An ineffective provision shall be replaced by a legally-valid one, which resembles the economic purpose of the ineffective provision as closely as possible. This shall apply to contractual gaps accordingly. 2. For meeting the written form requirement neither a personal nor an electronic signature shall be required. Messages by facsimile or email as well as other textforms shall satisfy the written form requirement. |