§ 1 – Scope of Application
1. Our Terms and Conditions shall only apply to businesses in terms of § 310 BGB (German Civil Code).
2. The following Terms and Conditions of sale and delivery shall apply to all of our contracts, deliveries and other services, unless they are modified or excluded with our express written consent. They shall also apply if we deliver in knowledge of deviating terms of our Contractual Partner without making any reservation. General terms and conditions of our Contractual Partner shall only be effective if we confirm them in writing.
3. Our conditions shall also apply to all future contracts, deliveries and services, even if they have not been transmitted to the Contractual Partner attached to our offer or our confirmation of order once again.
§ 2 – Offer and Conclusion
1. Our offers are non-binding. Contracts and other agreements shall be effective only by our confirmation in writing or our delivery or performance.
2. Any agreement made between us and our Contractual Partner shall be recorded in writing. Agreements made during or after conclusion between our employees or representatives and our Contractual Partner require our written confirmation to be effective; our employees´ and representatives´ power of representation is limited in this respect.
3. Commercial letters of confirmation of our Contractual Partner shall not result in the conclusion of a contract with provisions deviating from our offer, our own letter of confirmation or our other written statements, even without our objection.
4. As far as these Terms and Conditions provide written form, the transmission by fax message or email shall be sufficient. A written agreement shall be deemed to be concluded if our Contractual Partner and us issue statements with corresponding content in written form.
§ 3 - Prices, Price Increases and Payment
1. Our prices are stated in Euro and our Contractual Partner shall pay in Euro unless otherwise agreed. All stated prices are net prices. Statutory VAT comes in addition. Our prices relate to delivery ex works including domestic pakkaging, but exclusive of transportation charges, taxes, insurance, shipping, letters of credit and/or other documents required for contractual performance unless otherwise agreed.
2. If there is a subsequent increase of our buying prices and/or any wage or salary rates applicable to us in the period between conclusion and performance of the contract in case of orders to be performed later than six months after conclusion, we shall be entitled to claim a price increased by a percentage of the respective buying price and/or the wage or salary costs in proportion to the price agreed.
3. We reserve the right to perform concurrently upon payment of the price agreed before. In other respects our invoices are payable within 10 days from invoice date with cash discount amounting 2% or within 30 days from invoice date without deduction, unless otherwise agreed or provided in our offer letter and/or letter of confirmation. Cheques or bills of exchange will only be accepted on account of performance; they shall be deemed as payment once they are discharged and irrevocably credited on our bank account. Our Customer shall bear all costs and expenses incurred by a cheque or a bill of exchange. If our Customer defaults in any payment obligation towards us, all existing claims against our Customer shall become due for payment immediately.
4. We shall be entitled to charge interest for late payment from the due date at the rate of eight percentage points above the applicable base interest rate. Any additional claims - in particular in respect of events of default on the part of our Contractual Partner - shall remain unaffected. § 4 - Place of Performance Place of performance for deliveries, services and payments is Remscheid in any case.
§ 5 - Set-off and Right of Retention
Set-off against any counterclaim is not permissible if the respective counterclaimis disputed by us and has not been finally and absolutely established as due for payment by a court of law. Our Contractual Partner is not been entitled to enforce a right of retention against any counterclaims not basing on the same contract, unless such counter claim has been admitted by us or has been finally and absolutely established as due for payment by a court of law.
§ 6 - Deterioration of the Financial Status; Events of Default of Our Customer
1. If one of the following events occurs or if such event has occurred before conclusion and does not become known until after conclusion, we shall be entitled to claim advance payments amounting to the agreed price by our Contractual Partner as well as to revoke any respite for payment that has been agreed or granted and return any bill of exchange in circulation. This shall apply in the case of the following events: - Our Contractual Partner files a petition in a judicial or extrajudicial insolvency, bankruptcy or composition proceedings or a judicial or extrajudicial insolvency, bankruptcy or composition proceeding regarding our Contractual Partner´s estate is initiated or the initiation of such proceedings is dismissed for the lack of assets; - There is a written credit report providedby a bank or a credit reporting agency certifying our Contractual Partner´s lack of credit-worthiness or a relevant deterioration in financial circumstances or that a cheque or bill of exchange is dishonored or protested; - Our Contractual Partner defaults in payment in the context of another transaction with us.
2. If our Contractual Partner does not meet our legitimate demand for advance payment within an appropriate extension period of time specified by us, though having announced to refuse any of its performance after expiry of this period we shall be entitled to withdraw from the contract or claim compensation for damages in lieu of performance in respect to the part of the contract not-yet performed by us.
§ 7 - Dispatch; Transfer of Risk; Insurance; Disposal
1. Regardless of the place of dispatch the risk shall pass to our Customer as soon as the dispatch of the delivery item has begun, even if free delivery or free warehouse has been provided by way of acceptation.
2. In case of a lack of shipping instructions by our Contractual Partner or if a deterioration of such instructions is deemed to be acquired, we dispatch to the best of our digression without any obligation to use the cheapest or fastest trade. Any insurances shall only be completed upon request of our Contractual Partner, against any insurable risk requested by our Contractual Partner, in particular against theft and transport damages and shall be charged to its expenses. We shall be notified about any transport damages without any delay. Moreover the recipient shall ensure that the respective claims and reservations are announced towards the transport carrier.
3. If the dispatch is delayed due to our Contractual Partner´s request or for reasons within our Contractual Partner´s scope of accountability, the items will be stored at our Contractual Partner´s expense and on its own risk.
4. If and to the extent we are obliged to accept returns of packaging material, our Contractual Partner shall bear the expenses of such return.
5. Our customer shall be obliged to dispose any delivered items properly on discontinuation of usage at its own expense and in compliance with the statutorily provisions. Our Contractual Partner shall keep us indemnified against any obligation to return as well as any obligation in context with that.
§ 8 - Delivery Periods; Purchase on Demand; Events of Default; Impossibility of Performance
1. Delivery dates and deadlines shall only be binding if confirmed by us in writing.
2. A delivery period only specified by its length shall start upon the day on written agreement on our contractual details has been reached, but not before supplying all documents and approvals to be provided by the Purchaser and not before the receipt of an advance payment to be made by the Purchaser, if any. Delivery periods/dates as well as the respective delivery date/period applicable even without such agreement shall postpone if the presentation of the above mentioned conditions is delayed; our Contractual Partner is charged with the burden of prove for having met all required conditions and having provided all documents, schedules and information required.
3. Delivery delays due to force majeure, war, insurgency, strike, lock out, machine failure, shortage of material or other events beyond our sphere of influence shall excuse us of the obligation to deliver for the duration of the hindrance and shall entitle us to withdraw from the contract by our own choice, whereas the Purchaser shall not be entitled to withdraw from the contract in such case; any claims of the Purchaser due to late deliveries for any reason shall be excluded. If such delays persist more than three months, the Purchaser shall be entitled to withdraw from the contract but excluding any further claims and only after setting another grace period for supplementary performance of not less than four weeks. The right to withdraw from the contract is limited to the part of the contract not-yet performed, unless our Contractual Partner has reasonably no interest in the part of the contract yet performed anymore.
4. Our performance shall be deemed accomplished as soon as the delivery items are ready to dispatch in our plant and the Purchaser has been informed about the readiness of dispatch; it also shall be deemed accomplished as soon as the delivery items leave our plant as provided in the contract. If the dispatch is delayed for reasons within the Purchaser´s scope of accountability, the delivery period shall be deemed to be met on notification of readiness for dispatch. Periods and dates agreed or otherwise applicable shall be extended and/or placed on hold by the period in which the Purchaser defaults in performance of any of its obligations - within the scope of a current business relationship also of obligations under other contracts.
5. We shall be entitled to send partial deliveries, provided the respective partial delivery is deemed acceptable to our Contractual Partner. However, the Purchaser shall not be entitled to the demand partial delivery, unless otherwise expressly agreed.
6. If we default in delivery or if our obligation to performis excluded due to § 275 BGB (German Civil Code), we shall only be liable to pay compensation under the conditions and to the extent set forth below in § 11, however, subject to the following additional conditions: - If we default in delivery due to slight negligence on our part, the claims for default damages shall be limited to a lump-sum default compensation amounting to 0.2% of the respective delivery value for each full week of default, but not more than 5 % of the respective delivery value, whereas we reserve the right to prove that a minor damage or no damage has actually occurred as result of default. Further claims of the Purchaser shall require that the event of default is due to intentional misconduct or gross negligence on our part. - In events of default our Contractual Partner shall only be entitled to claim compensation for damages in lieu of performance if our Contractual Partner had set an appropriate grace period for supplementary performance of not less than four weeks, whereas our Contractual Partner shall be entitled to set an appropriate grace period of less than four weeks in a given case, if a period of at least four weeks is to be considered inacceptable to our Contractual Partner. - Any right to withdraw from the contract as well as any claim for compensation on behalf of our Contractual Partner is limited to the part of the contract not-yet performed, unless the Purchaser has reasonably no interest in the part of the contract yet performed anymore. - Compensation claims against us for default damages or due to exclusion of the obligation to performdue to impossibility in terms of § 275 BGB (German Civil Code) shall become time-barred upon expiry of one year as of the statutory limitation period commencement. - The above-stated provisions shall not apply to damages to live, body, health or freedom of our Contractual Partner as well as to damages caused by intentional misconduct or gross negligence on our behalf, on behalf of our legal representatives or vicarious agents; in events of default they shall neither apply if a fix date has been agreed.
7. Call orders will only be accepted for an acceptance period. If the respective acceptance period is not specified exactly, it shall expire twelve months after conclusion of the contract. At that the goods shall be accepted in approximately equal monthly quantities. If acceptance is not made within the respectively agreed period, we shall be entitled to deliver any completed consignments without further notice or store them at our Customer´s expense. Moreover we shall be entitled to set a grace deadline for acceptance of the goods with announcement of refusal of acceptance upon expiry of the given period. If such grace period expires inefficaciously, we shall be entitled to withdraw from the contract in whole or in part while terminating our obligation to deliver or deny delivery and claim compensation for damages in lieu of performance.
§ 9 - Notices of Defect
1. Our Contractual Partner shall be obliged to notify us about any defects without undue delay. In such cases our Contractual Partner shall only be entitled to retain payments if the notice of defect is founded beyond any doubt. The amount shall appropriately relate to the defect. If the notice of defect has been made unfounded, we shall be entitled to claim compensation for any expenses occurred.
2. In case of a founded notice of defect within the one-year-long statutory guarantee period the defect shall be remedied or an item free of defects shall be supplied or the performance shall be made again by our own choice.
§ 10 - Condition of the Goods; Supererogation and Short Performances
1. Our specifications and technical descriptions regarding the object of performance, purpose of use, measurements, weights, usage or any other characteristics, regardless whether being contained in brochures, pricelists, descriptions, images, drawings, sketches, catalogues or any other files shall only be deemed as merely indicative of items typically supplied in the industry; they shall only serve as descriptions and shall not be deemed as warranted characteristics or guarantees, unless expressly confirmed by us or otherwise provided with our Contractual Partner. This shall also apply to our samples, which shall only be deemed as approximate illustrative articles for quality, measurements and miscellaneous characteristics.
2. In case of technology-induced necessity, we reserve the right to supply the ordered items with deviations in conditions, dimensions and other characteristics, provided the items delivered are not materially adversely affected regarding their usability hereto and are not deemed unacceptable to our Contractual Partner due to other reasons.
§ 11 - Defects; Liability
1. Our Contractual Partner shall provide us an appropriate quantity of the goods being defective in its opinion for tests and the verification of deficiency claims by us or a third party in a near term by request, whereas we shall bear any delivery charges for that.
2. Our Contractual Partner’s deficiency claims shall be determined by the statutory provisions, provided that our Contractual Partner grants us an appropriate period of time for supplementary performance of at least 4 weeks, whereas our Contractual Partner shall remain reserved to determine an appropriate period of less than 4 weeks in a given case, provided that a period of at least 4 weeks is deemed unacceptable to our Contractual Partner. Deficiency compensation claims regarding goods or service are limited to the extent determined in the following subsection 3.
3. Our liability for damages to life, body or health of our Contractual Partner arising from a culpable breach of duty is neither excluded nor limited. Our liability for any other damages requires an intentional misconduct or gross negligence on our side or on the side of one of our legal representatives or vicarious agents. In other respects our Contractual Partner’s claims for compensation due to violation of contract, defects, tort or any other legal basis shall be excluded. The above stated limitation of liability shall not apply to any lack of guaranteed qualities or guaranteed attributes, as far as the guarantee’s purpose was to prevent any damages to the Contractual Partner not occurring in the goods or services themselves. As far as our liability is excluded or limited, this limitation shall also apply to the private liability of our employees, workers, staff and vicarious agents. The above stated limitation of liability shall also apply to consequential damages in any case. The above stated limitation of liability shall not apply to claims under the terms of Produkthaftungsgesetz (German Product Liability Code).
4. Thewarranty period amounts to 1 year as of transfer of risk in the context of sale contracts and contracts for work and materials. In the context of contracts for work the warranty period amounts to 1 year as of acceptance of performance, regardless of whether the acceptance has been stated expressly or conclusively.
§ 12 - Retention of Title
1. Delivered goods remain our property up until full payment of all present or future accounts receivable from our Contractual Partner. Processing or modification of goods delivered by us shall always take place on our behalf as manufacturer, though without obligating us. In case a product delivered by us is being processed with other goods not belonging to us, we shall obtain co-ownership rights of the new product in proportion of the invoiced amounts of the delivered goods by us to the invoiced amount of the other used goods at the time of the processing. In case our products are being connected with othermoveable products to make one uniform product and if the other product is regarded as principal product, our Contractual Partner shall transfer the pro-rata ownership to us, provided and to the extent our Contractual Partner owns the principal product. In case that the transfer of the ownership or co-ownership requires the delivery of the goods, this procedure is replaced by the agreement already entered into that our Contractual Partner safeguards the product for us like a hirer or if our Contractual Partner does not possess the product, that the delivery of the goods is replaced by assignment of the claim for surrender against the possessor. Goods to which we have a right of (co-)ownership according to the above-stated provisions are hereinafter referred to as Retained Goods.
2. Our Contractual Partner shall be entitled to sell RetainedGoods in the proper course of business as well as to use the Retained Goods as components of a new product. Our Contractual Partner already assigns the claims arising from the sale of assembly or from any other legal basis of the Retained Goods in advance to us, in total or in proportion to the (co-)owner ship ratio of the respective sold or processed product. If such claims are included in ongoing invoices the assignment of rights must also include outstanding balance claims. The assignment shall be first-ranking. Reserving the right of revocation we empower our Contractual Partner to collect the respective assigned financial claims for us. Our Contractual Partner shall be obliged to transfer any collected amounts immediately to us, to the extent and as soon as the claims are due and payable. If our claims are not due for payment yet, our Contractual Partner shall document and record the collected amounts separately. Our right to collect the claims on our own remains unaffected. However, we undertake not to collect such claims as long as our Contractual Partner fulfils its payment obligations resulting fromthe collection of payments and there is no default in payment and no petition in bankruptcy/insolvency has been filed and there is no stoppage of payments on behalf of our Contractual Partner. However, in these cases our Contractual Partner shall be obliged to disclose the assigned claims and the debtors to us, to provide the relevant documents and to inform about all facts necessary for the collection of the payments; moreover our Contractual Partner shall be obliged to inform the third party debtors about the assignment of claims whereas we shall still be entitled to inform third party debtors about the assignment. Our Contractual Partner´s rights to resell, process, mingle or assemble any Retained Goods and to collect our payment claims shall expire upon stoppage of payment or filing a judicial or extrajudicial application of bankruptcy/insolvency, even without our revocation of these rights.
3. Our Contractual Partner shall be obliged to inform us immediately if any third party claims any rights to Retained Goods or the assigned claims and shall bear all costs of necessary interventions or defense.
4. Our Contractual Partner shall be obliged to handle Retained Goods with care and to insure them adequately according to the original value against fire, water or theft at its own expense.
5. If our Contractual Partner breaches the contractual provisions – particularly in events of default in payment – we shall be entitled to take back the Retained Goods at our Contractual Partner´s expense or to request the assignment of our Contractual Partner´s claim for surrender against third parties regarding the Retained Goods. Taking back or attaching Retained Goods by us do not mean termination of the contract, unless we explicitly state so in writing.
6. If the retention of title loses its validity because the product is sold abroad or if we lose its retention of title for any other reason our Contractual Partner shall be obliged to immediately grant us another way of securing the Retained Goods or another kind of security which is valid under the applicable law of the foreign purchaser’s place of business and comes as close as possible to the retention of title under German law.
7. If the nominal value of the securities exceeds our claims by more than 20 % sustainably, we shall return a proportional part of the securities at our own option upon request of our Contractual Partner.
§ 13 - Intellectual Property Rights
1. If a product is to be manufactured according to drawings, designs or other specifications of our Contractual Partner, our Contractual Partner guarantees not to violate any third party rights, in particular patents, registered designs and other industrial or intellectual property rights. Our Contractual Partner shall keep us indemnified of any third party claims arising from a violation of such rights. Furthermore our Contractual Partner shall bear the full costs incurring by the assertion of such claims by third persons and/or by our defense against such claims.
2. If any results, solutions or technologies emerge in the course of our development work, which are legally protectable in any way, we shall be the sole holder of the property rights, copyrights and rights of beneficial use; we shall be entitled to make the respective applications for property rights on our own behalf and in our own name exclusively.
§ 14 - Venue and Governing Law
1. Exclusive venue for deliveries, services and payments – including actions pertaining cheques and bills of exchange – as well as for any disputes arising between the Parties is Remscheid, whereas we shall still be entitled to institute proceedings against our Contractual Partner at any other venue applicable under the terms of §§ 12 et seq. ZPO (German Code of Civil Procedure).
2. The relations between our Contractual Partner and us are exclusively governed by the laws of the Federal Republic of Germany excluding the international sales laws, in particular the United Nations Convention on Contracts for the International Sale of Goods and any other international agreements for the purpose of the standardization of the sales law.
Remscheid, December 2011