General Terms of Sale and Delivery

§ 1
General information – scope

1.      Our Terms of Sale shall apply exclusively towards entrepreneurs, legal entities under public law or special assets under public law within the meaning of § 310 Par. 1 BGB [German Civil Code].

2.      We do not recognise contradictory terms and conditions of the orderer or terms and conditions which deviate from our Terms of Sale unless we had explicitly approved their validity in writing. This shall also apply if we carry out the delivery to the orderer without reservation in the knowledge of contradictory terms and conditions of the orderer or terms and conditions which deviate from our Terms of Sale.

3.      These Terms of Sale shall also apply to all future legal transactions with the orderer insofar as it concerns legal transactions of a related kind.

§ 2
Offer – offer documents

1. If the order is to be qualified as an offer according to § 145 BGB we can accept this within 2 weeks.

2. We reserve the property rights and copyrights to diagrams, drawings, calculations and other documents handed over to the order when the order is placed. This shall also apply to those written documents, which are described as “confidential”. The orderer requires our explicit written consent before forwarding these to third parties. Insofar as we do not accept the offer of the orderer within the deadline of § 2 Subclause 1 these documents are to be returned to us immediately.

§ 3
Prices – terms of payment

1. Insofar as not otherwise derived from the order confirmation our prices shall be deemed “ex works or ex warehouse“, including packaging.

2. The statutory value added tax is not included in our prices; it shall be disclosed separately in the invoice in the applicable rate on the day of the invoicing.

3. The deduction of cash discount requires a separate written agreement.

4. Insofar as not otherwise derived from the order confirmation the purchase price is due and payable within 30 days from the invoice date. The statutory regulations relating to the consequences of the default of payment shall apply.

5. The orderer shall only be entitled to rights to offset if its counter-claims have been declared final and binding, are undisputed or have been recognised by us. It is only authorized to exercise a right of retention to the extent that its counter-claim is based on the same contractual relationship.

6.  Insofar as no fixed price agreement has been reached, the right is reserved to make reasonable changes to the prices owing to changed costs for wages, materials and sales for deliveries, which are carried out 3 months or later after conclusion of the contract.

§ 4
Delivery time

1.  The start of the delivery time stated by us presumes the timely and proper satisfaction of the obligations of the orderer. This in particular includes the clarification of all technical questions insofar as these belong to the principal and secondary contractual duties (duties to provide assistance) of the orderer. The right is reserved to the plea of the non-fulfilled contract.

2.  If the orderer is in default of acceptance, or if it culpably breaches other duties to provide assistance, we are entitled to request compensation for the damages accordingly suffered by us, including reimbursement of possible additional expenses. The right is reserved to further claims.

3.  Insofar as the pre-requisites of Par. 2 exist the risk of an accidental loss or an accidental deterioration to the object of purchase shall pass to the orderer at the time at which it is in default of acceptance or as debtor.

4.  We shall principally be liable in case of delay in delivery according to the statutory provisions. In the event of the simple negligently caused delay in delivery our liability shall be limited to the compensation for typical, foreseeable damages within the framework of a flat rate compensation for default in the amount of 3% of the delivery value for each full week of delay, a maximum however of no more than 15% of the delivery value.

5.  We shall be indemnified from our obligation for delivery if our sub-supplier does not supply us for a congruent hedging transaction, which is carried out before or in time directly after conclusion of the contract, without a fault on our part at the contract price, not correctly, not in time or not at all and we inform the buyer of this circumstance immediately. For this event we undertake to reimburse a possibly already paid purchase price immediately. We are also entitled to this right to exemption from service in the event of framework agreements or successive delivery contracts for partial deliveries without the claim for fulfilment of the order remaining, without consideration of the relevant partial delivery, being affected hereby.

§ 5
Passing of risk – packaging costs

1.  Insofar as not otherwise derived from the order confirmation delivery “ex works” is agreed. With the shipment to the orderer, by no later than with the leaving of the plant/warehouse the risk of accidental loss or the accidental deterioration to the goods shall pass to the orderer. This shall apply irrespective of whether the shipment of the goods is carried out from the place of performance or who bears the freight costs.

2.  The delivery is deemed as provided towards self-collectors with the provision in the freight forwarding warehouse. Opposing individual agreements are invalid.

3.  Transport and all other packaging according to the packaging regulations will not be taken back; excluded are pallets. The orderer undertakes is obliged to dispose of the packaging at its own costs.

4.  Insofar as requested by the orderer we shall cover the delivery by transport insurance; the thus incurred costs shall be borne by the orderer.

§ 6
Rights of the orderer in case of defects

1.  Claims for defects of the orderer presume that it has properly satisfied its responsibility for inspection and report of defects owed according to § 377 HGB [German Commercial Code].

2.  Should, despite showing all required care and attention, the delivered goods feature a defect, which already existed at the time when the risk was passed, we shall, subject to a report of defects within the deadline, at our choice subsequently improve the goods or delivery substitute goods. We are always to be given the opportunity for the subsequent performance within a reasonable deadline. Claims for recourse shall remain unaffected without limitation by the above regulation.

3.   In the event of the remedy of defects we are obliged to bear all expenses, which are necessary for the purpose of remedying the defects, in particular transport, route, labour and material costs, insofar as these are not increased by the fact that the object of purchase was transported to another location than the agreed place of shipment.

4.  If the subsequent performance fails then the orderer is entitled at its choice to request cancellation or reduction.

5.  The statute-of-limitations for claims for defects is 12 months, beginning from the passing of risk. The legal statute-of-limitations in the event of a supply recourse according to §§ 478, 479 BGB remains unaffected.

§ 7
liability and joint liability

1.  We shall principally be liable for damages according to the statutory provisions. In the event of the simple negligent breach of our contractual duties our liability is limited to the compensation of typical, foreseeable damages. § 4 Subclause 4 remains unaffected hereby.

2.  Insofar as our liability for damages is excluded or limited this shall also apply with regard to the personal liability for damages of our employees, workers, representatives and vicarious agents.

§ 8
Assurance of reservation of title

1.  The object of purchase shall remain our property until the full payment of the purchase price and until all receivables from the business relationship between us and the orderer have been settled (reservation of current account).

We reserve the property to the object of purchase until the receipt of all payments from the supply contract. In case of conduct of the orderer in breach of the contract in particular with defect of payment, we are entitled to take the object of purchase back. The taking back of the object of purchase by us does not represent a cancellation of the contract unless we have explicitly declared this in writing. The attachment of the object of purchase by us shall always represent a cancellation of the contract. After taking the object of purchase back we are authorized to sell it, the sales proceeds are to be offset against the liabilities of the orderer – minus reasonable sales costs.

2.  The orderer undertakes, as long as the property has not yet been transferred to it, to transport and to store the object of purchase in accordance with the requirements of the associated safety datasheet; it is in particular obliged to sufficiently insure this for the value as new at its own costs against damages by fire, water and theft.

3.  In case of attachments or other interventions of third parties the orderer has to inform us immediately in writing until the full transfer of ownership so that we can file an action according to § 771 ZPO [Code of Civil Procedure]. Insofar as the third party is not in the position to reimburse us the in court and out-of-court costs of an action according to § 771 ZPO the orderer shall be liable for the loss incurred to us.

4.  The orderer is entitled to resell the object of purchase in the ordinary course of business; however it hereby now already assigns all claims in the amount of the final invoice amount (including VAT) of our claim, to which it is entitled from the resale against its buyer or third party irrespective of whether the object of purchase has been resold without or after processing. We accept the assignments an. The orderer shall also remain authorized to collect the claim after the assignment. Our authorization to collect the claim ourselves remains unaffected hereby. However, we undertake not to collect the claim as long as the orderer satisfies its payment obligations from the collected proceeds, is not in default of payment and in particular no application has been filed for the opening of bankruptcy or composition or insolvency proceedings or payments have been suspended. If this is however the case we can request that the orderer announces the assigned claims and their debtors to us, provides us all information which is necessary for the collection, hands over the associated documents and informs the debtors(third parties) of the assignment. We are also entitled to disclose the assignment with the existence of the afore-mentioned pre-requisites.

5.  The processing or conversion of the object of purchase by the orderer is always carried out on our behalf. If the object of purchase is processed with other objects which do not belong to us we shall acquire the co-ownership to the new object in the ratio of the value of the object of purchase (final invoice amount, including VAT) to the other processed objects at the time of the processing. The same shall incidentally apply to the object produced by processing as to the object of purchase delivered under reservation.

6.  If the object of purchase is inseparably mixed with other objects, which do not belong to us, we shall acquire the co-ownership to the new object in the ratio of the value of the object of purchase (final invoice amount, including VAT) to the other mixed objects at the time of the mixing. If the mixing is carried out to the extent that the object of the orderer is to be seen as the main object then it is deemed as agreed that the orderer assigns us pro rata co-ownership. The orderer shall keep the thus produced sole ownership or co-ownership in safekeeping on our behalf.

7.  We undertake to accordingly release the collateral, to which we are entitled, upon request of the orderer to the extent that the value of our collateral items which can be realised on the market exceeds the claims which are to be collateralised by more than 20 %; we are responsible for the selection of the collateral items which are to be released.

8.  Subject to our rights from Subclauses 1–7 the transfer of ownership is carried out in line with the regulations of § 5 Subclauses 1-2.

§ 9
Place of jurisdiction – place of performance

1.  This contract and the entire legal relationships of the parties are subject to the law of the Federal Republic of Germany under the exclusion of the UN Convention on the International Sale of Goods (CISG).

2.      The place of performance and exclusive place of jurisdiction for all disputes from this contract is our registered seat or – at our choice – the general place of jurisdiction of the orderer.

§ 10
Miscellaneous

1.  All agreements between us and the orderer require a written form. Oral collateral agreements are not permitted. Reports and other declarations, which are to be submitted towards one party, shall only be effective if they are received in writing or by fax.

2.  Should individual provisions of this contract be or become invalid or a loophole be determined therein this shall have no effect on the remaining provisions. The parties undertake to agree upon a regulation which is admissible by law to replace the invalid regulation, which shall as far as possible correspond with the commercial purpose of the invalid regulation or fills this loophole.
                                                                                                                  

      Version: November 2012