GENERAL TERMS OF SALE AND DELIVERY
I. General provisions
1. Our General Terms Of Sale And Delivery shall apply for all concluded contracts between the buyer and ourselves. Our General Terms Of Sale And Delivery apply for all future business relationships, even without further agreements in writing. Any general terms of the buyer that deviate from our terms are not acknowledged by ourselves, even we do not disagree, unless we have approved their validity in writing. The General Terms Of Sale And Delivery stated herewith are valid, whenever we execute implicitly a buyer‘s order even we are fully aware that the buyer’s terms of sales will conflict with or deviate from our terms.
2. In all contracts reached between the buyer and ourselves agreements for delivery of goods and merchandises are set down in writing.
II. Offer and conclusion of contract
1. A buyer‘s order that can be qualified as a concluded contract to an offer, can we accept either by sending a formal order confirmation or by delivering the ordered merchandise within two weeks.
2. Our offers are subject to change and not binding, unless we assertively termed those as being binding.
III. Copyright/ Contract penalty
1. We reserve all rights, titles and copyrights to all illustrations,
calculations, sketches and to all other documents. The buyer may make those
accessible to third parties only in case we formally approved it
in writing. This is irrespectively to apply whether those have been labeled confidential or not.
2. In any case of violation of afore mentioned agreement, can we insist on a contract penalty of € 5.000. Assertion of further damages will remain unaffected, whereupon the contract penalty will be credited against such requirements.
IV. Terms of payment
1. Our prices apply “ex works“ plus statutory VAT, without cost for packaging, insofar the order confirmation does not state otherwise.
2. Any cash discount deduction has to be settled in writing between the buyer and ourselves. The invoiced amount is payable in full when invoice is received or within three days from date of invoice, as long as no different term of payment is stated in the order confirmation.
3. The buyer shall only be entitled to set off rights in case the counter-claims are ascertained in a sentential way, accepted by ourselves or are undisputed. However the buyer is only authorized to execute rights of retention as far as his counter-claims are based upon the same contractual relationship.
4. Partial deliveries will we invoice immediately. Those are due for payment after each delivery.
V. Deliveries and delivery time
1. All delivery dates and time limits are solely non-binding indications, as long as not otherwise stated. (The indicated delivery time will commence after all technical queries will have been clarified). In turn is the buyer responsible for complying with all his obligations duly and timely.
2. The buyer is required to inform us explicitly in case his order has to be delivered on a point of time. He has to explain that he might not be committed to his order when this point of time has elapsed.
3. We are not liable for damages caused by delayed deliveries in cases of slight negligence. However are we liable in accordance with the provisions of law, soinfar our liabilities for damages are limited to damages that are typical and predictable.
4. We are entitled to partial deliveries any time as long as this performance is acceptable to the buyer.
5. Should the buyer be delayed in taking the delivery, we shall be entitled to request compensation for damages and for additional expenditures. The same will be applied if the buyer violates his obligations of co-operation. In such cases the risk of accidental deterioration or accidental loss of the purchased goods shall pass to the buyer.
VI. Passing of risk - Dispatch/ Packaging
1. If not stated otherwise in order confirmation, delivery “ex works” is agreed. The risk of any deterioration and of accidental loss shall be passed to the buyer from the time when purchased goods are made accessible to him or to the person assigned by him, latest from the time when goods will have left our plant or depository.
2. Loading and shipping of goods take place uncovered and at the risk of the buyer. Freight charges have to be covered by the buyer.
3. Transport packaging and all other packaging under packaging rules will not be taken back, but we will take back pallets. The buyer shall dispose all packages at his own expense.
4. If the buyer asks for delayed shipment or will he default any shipment delays, we will place the purchased goods into stock at cost and risk of the buyer. In this case an advised readiness for shipment is regarded that goods will have already been dispatched.
VII. Warranty/ Liabilities
The buyer has warranty rights only when he has properly complied to his
obligations of examination and
notification of defects owed according to § 377 HGB - German Commercial Code.
2. Insofar as we default a defect of the merchandise are we obliged to supplementary performance without regards for buyer’s rights as withdrawing from the treaty or reducing the price of purchased goods, unless we are entitled to refuse supplementary performance by reason of legal requirements. The buyer shall allow us adequate and additional time for supplementary performance. We will cover necessary expenditures for removing the defects as long as those do not increase because the subject of contract is located at another place than the place of performance.
In case of an unsuccessful supplementary performance, the buyer can demand for either reducing the price or withdrawing from the treaty. The supplementary performance is failed in case the second attempt has been unsuccessful, unless repeated supplementary performance actions of the subject of contract are appropriate and reasonable to the buyer.
3. Claims for damages due to deficiencies according to the following conditions, the buyer can enforce, in case all supplementary performances have failed. Insofar not otherwise stated in paragraphs 4 all further claims of the buyer – regardless for any other reason – are excluded. We are not liable for damages that cannot be originated directly from the delivered item; In particular we are not liable for the buyer’s loss of profit or any other pecuniary detriments.
4. In case of intention and culpable negligence our liabilities are limited to statutory provisions. As long as we violate culpably essential contractual obligations or a “cardinal obligation“, our liabilities are limited to damages that are typical to the contract and incidentally excluded acc. to paragraph 3.
5. All further liabilities are excluded irrespectively of the right of any enforced claim. This shall be applied also for tort claims or for claims of compensations for effortless results instead of delivering a functional good. In case our liabilities are excluded or limited, however this is applied also for the personal liabilities of our employees, jobholders, representatives, assistants and assignees.
6. We point out that we are not the maker of the product.
7. Buyer’s damage claims due to defects will prescribe after one year from date of delivery. This is not to apply in cases we, our legal agents or our assistants default injuries of life, of body or health or in case we, our legal agents act deliberately or act in gross negligence, or our agents act deliberately.
VIII. Reservation of title
1. Until the reception of all payments including recognized balances from open account, now and in any future do we reserve all propriety rights of the delivered goods (Reserved Property). In case of contract violations of the buyer, i.e. default of payments, we are entitled to take back the Reserved Property when an agreed deadline for payments has elapsed. By taking back Reserved Property we withdraw from the treaty. By pawning Reserved Property do we withdraw from contract. Having taken back Reserved Property, we are entitled to commercialize it. We are authorized to set off proceeds of the commercialization against the buyer’s outstanding payments less adequate expenses for its commercialization.
2. The buyer is obliged to treat Reserved Property properly and to insure it sufficiently at value as new against damages caused by fire, water and theft. All necessary maintenance and inspection work must be carried out by the buyer in due time and at his own expense.
3. The buyer is entitled either to resell Reserved Property in a diligent course of business or to use it, as long as he is not in arrears in payment. Pledging of goods or transfers by way of security are impermissible. All claims (including recognized balances from open account) from reselling or from any other cause in law (insurance, tortuous act) of Reserved Property the buyer will assign to us as security now and to the full extent; hereby we accept this assignment. We authorize the buyer revocably to collect already assigned receivables to us on behalf of his name and for his own account. This direct debit authorization can we revoke anytime, in case the buyer will not meet his payment obligations in a proper form. The buyer is not entitled to assign this receivable for purposes of debit collection in favor of a factoring company, unless obligations of factoring will be declared in order to provide considerations in the amount of the invoiced sum directly to us, as long as we have claims against the buyer.
4. Processing or transforming of Reserved Property carried out by the buyer is always done for our benefit. Should the Reserved Property be processed with items not belonging to us, shall we obtain joint ownership in the new object proportionally to the value of the Reserved Property (invoiced final amount including VAT) compared to the value of the processed objects at the point in time of processing. For new objects made by processing we apply the same terms and regulations as we would apply for Reserved Property. In case Reserved Property is inseparably blended with other objects not belonging to us, shall we obtain joint ownership in the new object proportionally to the value of the Reserved Property (invoiced final amount including VAT) compared to the value of the blended objects at the point in time of blending. If blending is done in a way that the buyer’s object is to be regarded as the principal thing, the buyer and ourselves are in accordance that the buyer transfers joint ownership to us on pro rata basis; hereby we accept this transfer. The buyer shall keep the object resulted by sole or joint ownership for us.
In case of seizing Reserved Property by third parties, in particular pledging, the buyer will refer to our ownership and shall give us notice without delay, so that we can enforce our property rights. Insofar a third party is not able to compensate us for all originated juridical or extra juridical costs in this context, the buyer shall be liable for.
5. We are obligated to release our securities insofar, as the marketable value of our securities will exceed the value receivables to be secured by more than 10 %. The choice of the securities to be released is at our preference.
IX. Place of performance, Place of jurisdiction, Applicable law
1. Place of performance and jurisdiction for deliveries and payments (including actions brought under a check or bill of exchange) and for all disputes arising out of entered contract between ourselves and the buyer shall be the location of our principal office/ Cham. However are we entitled to bring an action against the buyer at his residence and/ or place of business.
2. All relationships in between the contracting parties are treated by applying exclusively the Laws of the Federal Republic of Germany. The application of uniform laws regarding the international purchase of movable objects as well as laws regarding the conclusion of international sale contracts for movable goods is excluded.
X. Severability clause
1. Should single provisions in this contract with the buyer including this present General Terms of Sale And Delivery be or become invalid entirely or in part, this shall not affect the validity of the remaining provisions.
2. The provision that has become entirely or partially invalid is to be replaced by a regulation which is as close as possible to the economic outcome of the invalid provision.
3. Any amendment of, and addition to the above General Terms Of Sale And Delivery must be in writing in order to be valid. The same shall apply to any waiver of this written-form requirement.