General Terms and Conditions (GTC)

§ 1 – General Provisions

These general terms and conditions shall be applicable for all of our offers and contracts. Any adverse provisions or any customer´s provisions deviating from our GTCs will not be acknowledged, unless we accepted these other provisions expressly in writing.
Our GTCs are effective even if we should not refer to them expressly in posterior contracts within ongoing business relationship.

§ 2 – Offer and Conclusion of contract

Our offers are subject to change without notice if not agreed otherwise expressly in writing. Any contract shall be considered as awarded only if it was confirmed in writing or if it is being performed already.
For the subject terms of contract our confirmation of order – if issued – is exclusively relevant.
Our offers include delivery ex works plus packaging, if not stipulated otherwise expressly. Thus transport, packaging and installation have to be paid separately.

§ 3 – Delivery Periods

Delivery periods or any other performance periods shall be considered as binding only if expressly defined as binding.
In case a certain delivery period or any kind of deadline is agreed upon, they commence – if not expressly agreed otherwise – in the moment of our confirmation of order; in absence of the latter in the moment of the beginning of order-processing in our facility.
Our obligation to supply is suspended as long as the customer does not comply with his or her duty of payment.
Insofar as we are obliged to compensate a customer´s damage due to delay in performance, the customer may claim indemnities to the amount of 0,5 % of the purchase price for each full week of delay, but limited to an overall maximum of 5 % of the contract value for the entire delivery. Beyond that the customer can only claim indemnities if the actual damage exceeds the liquidated damages by more than 25 %.

§ 4 – Force Majeure Clause

In case of all or part impossibility of performance caused by act of God the stipulated delivery period is extended for the duration of the impediment to performance. The same also applies in case a customer set a deadline for performance, especially additional respites pursuant to section 286 subsection 1, section 323 subsection 2 of the German Civil Code (§§ 286 Abs. 1, 323 Abs. 2 BGB).
Before the extended delivery or performance period mentioned in preceding No. 1 of this paragraph has lapsed out, the customer is not entitled to withdraw from the contract or to claim indemnities. The preclusion of the right to withdraw from the contract ceases if and when the impediment to performance lasts longer than three consecutive months. Furthermore the right to withdraw from the contract is not precluded, if the customer has the right to withdraw from the contract without grace period notification pursuant to section 323 subsection 2 of the German Civil Code (§ 323 Abs. 2 BGB). In case the impediment to performance lasts longer than three consecutive months, we are entitled to withdraw from the contract as well.
Particularly war, warlike events, mobilization, import or export bans and blockade are considered act of God. Obstruction of transport, disruption of operations, delay of resource delivery, strike, lock-out or any other labor dispute as well as any other unpredictable, exceptional and non-culpably caused circumstances are treated as act of God.

§ 5 – Passing of Risk

The risk of accidental loss and accidental deterioration shall devolve upon the customer in the moment of hand-over to the haulage contractor. This is also applicable in case free delivery is agreed upon. In case of delivery by one of our own vehicles the aforesaid risks shall devolve upon the customer in the moment of loading of goods.
Precedent No. 1 is not applicable if the customer is consumer pursuant to section 13 of the German Civil Code (§ 13 BGB).
Persons that in case of pickup or at the place of off-loading sign the delivery note shall be considered as entitled to accept the goods and acknowledge receipt.

§ 6 – Condition of Goods

Insofar as offers, confirmations of order or any other documents on trade descriptions of goods, especially brochures, data sheets or application instructions are referred to or included into a contract, a respective warranty for a certain condition or durability of the described goods shall not be constituted. The same also applies for descriptions in respective technical standards.

§ 7 – Inspection of Goods

A customer that is merchant is obliged to notify us in writing of any defects within one week of delivery, pursuant to section 377 of the German Code of Commerce (§ 377 HGB). The notice of defects has to indicate the nature of the goods, the nature of defect, the date of delivery and the delivery note number. Non-cognizable defects are to be reported in writing within one week of discovery.
Goods that have been reported as defective or goods that are cognizable defective shall not be used, processed or assembled by the customer. In case the customer does not comply with this obligation, we shall not be liable for damages caused by the use, processing or assembly of these goods. Furthermore shall the customer in this case be charged for additional expenses that incur by rectification of a defect caused by use, processing or assembly of defective goods.

§ 8 – Customer Rights in Case of Defect

The customer rights in case of defect act in accordance with the statutory provisions. In case the customer is not consumer pursuant to section 13 of the German Civil Code (§ 13 BGB), the restricting regulations stipulated in the subsequent No. 2 - 8 shall be applicable.
Deflections and variations that range within the limits of the relevant technical tolerance shall not be considered as a defect of goods. The same also applies for variations that are usual in trade and inevitable as long as the contractual applicability is not affected.
Should a certain condition of the goods be agreed upon, any deflection from this condition shall be considered insignificant if the contractual applicability and use are not or not significantly affected. In this case claim of indemnities and withdrawal from contract are precluded.
The customer´s right to supplementary performance is limited to rectification of defects (reparation), if this reasonable for the customer, especially in case the defect can be corrected as effectively by reparation as by replacement.
The customer can plead failure of supplementary performance only if and when at least two attempts of supplementary performance have failed and at least three weeks have elapsed since notice of defects.
A grace period for supplementary performance set by a customer shall be considered as inappropriate, if it ends less than three weeks from receipt. Grace periods for supplementary performance have to be set in writing.
We shall be liable for damages caused by simple negligence only to a limited extend of reasonably foreseeable damages. Liability for damages to life, body or health shall remain unaffected.
All customer´s rights regarding claims for defects shall become time-barred after one year as of the moment of delivery, except for the claims mentioned in section 478 of the German Civil Code (§ 478 BGB). This is not applicable for cases of intent, gross negligence and compensation claims regarding damages to life, body or health. Furthermore this is not applicable in case goods delivered or assembled by us are used for a building. In the latter cases mentioned in the second and the third sentence of this no. of this section (section 8, no. 8) the statutory limitation remains unaffected.
The delivery of other than the contractually owed goods or other than the contractually owed amount shall be considered as defect.

§ 9 – Liability Limitation

In cases of slight negligence we shall be liable for serious violation of any major contractual obligations only to a limited extend of reasonably foreseeable damages. Liability for damages to life, body or health shall remain unaffected.
We shall only be liable for the violation of any minor contractual obligation, if damage is caused by intent or gross negligence. Liability for damages to life, body or health shall remain unaffected.
The preceding No. 1 and 2 are applicable by analogy for any other than contractual indemnity claims, especially claims caused by tortuous act, except claims based on sections 1 and 4 of the German Product Liability Act (§§ 1, 4 ProdHaftG). The liability limitation is also applicable in favor of our employees, jobholders, associates, representatives and agents.

§ 10 – Prices

The respectively applicable value added tax (VAT) shall be added to our prices, unless differing provisions are stated in the confirmation of order or the VAT is displayed expressly.

We shall reserve the right to adjust the prices accordingly in the event of significant decrease or increase of raw material costs, energy costs or labor costs after conclusion of contract and before consignment. We shall submit evidence of such changes. A Change shall be considered as significant if it exceeds the consumer price index that the German Federal Statistics Office (Statistisches Bundesamt) determined for a 4-person middle-income family household (1980 = 100%) by more than 10 %.

§ 11 – Payment Terms

Our invoices are immediately due and payable without deduction. Discount will only be granted by explicit agreement. Any agreed discount period commences on the date of invoice issuance. Only the merchandise value without freight costs, unloading charges or assembly costs is discountable.
Checks and bills of exchange (B/E) are only accepted if expressly agreed in advance and on account of performance. All allowances and charges are at the customer´s expense.
In the event of the customer´s payment delay, we shall at our own discretion be entitled to withhold further deliveries and services until advance payments or security deposits have been made (even in case we granted supplier´s credit), claim indemnity or withdraw from the contract. Further claims for interest and indemnity shall remain unaffected.
In case payment by installments is granted, the entire purchase price shall be due if and when the customer falls into arrears with one installment for more than 14 days.
In case of imminent inability to pay or aggravation of the customer´s solvency we are entitled to request immediate payment of all unsettled invoices even if those are not due yet.
We shall be entitled to offset the customer´s payment against one debt or the other in case claims result from several deliveries or services. The customer is not entitled to offset own claims against payments or refuse payments even if the customer´s claim is based on a notification of defect. The customer shall only be entitled to offset such claims against our own that are undisputed, legally recognized or ready for legally binding judgment.

§ 12 – Reservation of Proprietary Rights

We shall reserve the right of ownership for the delivered products until the entire purchase price is paid and all claims arising from the business relationship with the customer regarding those products are settled. Our products are delivered under title retention. The inclusion of separate claims in one invoice or the striking of balance and the respective acceptance shall not countermand the title retention. In case a bill of exchange is issued in connection with the payment of the purchase price and any notes payable arise thereby, the title retention shall not expire before discharge of the bill by the customer as drawee of a bill of exchange. In the event of non-payment by the customer we shall be entitled to take the conditional goods back; accordingly the customer shall be obliged to return those goods.
Processing or transforming of the conditional goods by the customer is always performed on our behalf, but shall not create obligations on our part. We shall gain ownership of the new object in this case. We shall gain co-ownership of the new object in the ratio of the value of the purchase object (if the purchase object is processed by means of other components not belonging to us) to the value of the other new components at the moment of processing. If the purchase object is connected, mixed or mingled pursuant to sections 947, 948 of the German Civil Code (§§ 947, 948 BGB) inseparably with other objects not belonging to the customer, he or she gains co-ownership according to the statutory provisions. In case the customer gains ownership or co-ownership by connection, mixing or commingling he or she assigns us co-ownership in the ration of the value of the purchase object to the other admixed components at the moment of connection, mixing or commingling. In this case the customer is obliged to store the new object that we own or co-own, and that is considered conditional goods pursuant to the adjacent clause as well, free of charge.
In case the customer sells conditional goods separately or combined with goods not belonging to us, the customer yet now cedes to us any and all claims accruing to him or her from that resell to a limited extend of the value of the conditional goods including ancillary rights and prior ranking to the rest; We accept this assignment. It shall be understood and agreed that the amount invoiced plus a safety loading of 10% that shall not be applied if and to the extent to which it is opposed by rights of third parties are considered as the value of the conditional goods. In case sold conditional goods are co-owned by us, the assignment shall extend to the amount that equates to the ratio of our co-ownership. § 12 No. 1 clause 2 is applicable by analogy for extended reservation of title. The assignment in advance mentioned in § 12 No. 3 clause 1 and 3 applies also for the balance claim
In case the customer permanently attaches the conditional goods to a third party´s estate, the customer yet now cedes any and all claims against that third party or whom it may concern, salary claims that arise in the future to a limited extent to the invoiced amount including all ancillary rights, i. e. including the right of concession of equitable mortgage as well. We accept this assignment. The customer is entitled to collect the claim under his or her own name. Payments received by third parties will be primary offset against claims that are not assigned to us. Is the customer´s claim cleared, he or she has to pay any further payment of that third party directly to us.
In case the customer permanently attaches the conditional goods to his or her own estate, the customer yet now cedes to us any and all claims accruing from the commercial sale of the estate or claims accruing from real estate property rights to a limited extent of the value of the conditional goods including ancillary rights and prior ranking to the rest; We accept this assignment. § 12 No. 2 second and third sentence shall be applicable by analogy.
The customer is entitled to resell, use or assemble the conditional goods only in line with the usual orderly course of business provided that the claims mentioned in § 12 No. 3, 4 and 5 are actually transferred to us. It shall be prohibited to the customer to dispose in any other way over the conditional goods, especially to hypothecate or assign these goods as collateral security. The customer is obliged to safeguard our rights in case of resell of the conditional goods by loan in the amount of our purchase price claim.
The customer shall be entitled to collect the receivables assigned to us pursuant to § 12 No. 3, 4 and 5. This right remains subject to rescission by us. However, we shall refrain from collecting the receivable, as long as the customer complies with his payment obligations toward us and also toward third parties. By our request the customer is obliged to denominate to us the debtors of the assigned claims and notify the latter about the assignment; we shall be entitled to notify the debtors of the assigned claims about the assignment ourselves as well.
In the event of attachment or other enforcement interventions regarding the conditional goods by third parties, the customer shall be obliged to notify us immediately and provide us with the documents necessary for objection. In the event of stoppage of payment, petition for insolvency proceedings or composition proceedings regarding the customer the rights for resell, use or assembly of the conditional goods as well as the right to collect assigned claims expire. The collection authorization shall expire as well in the event of protest of a bill or check protest.
The collateral security pledged in our favor shall extend to debts created in the event of insolvency ex parte by the liquidator in the course of his duties.
In case the customer has furnished collateral security already or further securities are furnished later, we shall only be entitled to request additional security pursuant to § 12 No. 4 and 6, if the realizable value of our accumulated securities does not exceed 110 % of the claim to be secured. If this value is exceeded, the customer shall be entitled to claim release of security accordingly. For the valuation of securities 140 % of the appraised value of security collateral and 140 % of the nominal value of claims assigned for security shall be regarded as limit for the accrual of a release claim.

§ 13 – Purchase on a Trial Basis

In case purchase on a trial basis is agreed upon and merchandise value exceeds € 2.500,00 (two thousand five hundred) the customer shall be obliged to insure the merchandise on his or her own expense. In the event of non-approval the customer shall be obliged to pay to us a compensation in the amount of 0,5 % of the merchandise value for every day of utilization. The customer shall be entitled to provide evidence that the actual damage accrued to us is significantly minor.
Field tests shall only be undertaken in our presence. Field tests shall only be permitted for the duration of 3 machine hours at the most. In case this time frame is exceeded by more than 10 %, the merchandise is considered as bought without any reservation.

§ 14 – FINAL PROVISIONS

The place of performance regarding payment shall be our business location.
In case the customer is merchant, body corporate organized under public law or special fund under public law it shall be understood and agreed that the courts having jurisdiction for our business location are sole places of venue. The same applies if the customer does not have a domestic natural forum, displaces his or her habitual residence out of the area of application of the German law after conclusion of contract or incase the customer´s permanent dwelling is unknown at the time of commencement of legal action. We shall remain entitled though to sue the customer at the courts having jurisdiction for the customer´s natural forum at our own discretion.
The legal and contractual relationship between us and the customer is subject to German law under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Should any of the provisions of the GTCs be ineffective or void in part or in whole, the validity of the remaining provisions are not affected. In this case the statutory rules shall apply supplementarily.

2011-11

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General Terms and Conditions (GTC)