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GENERAL TERMS AND CONDITIONS OF SALE

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  2. GENERAL TERMS AND CONDITIONS OF SALE

GENERAL TERMS AND CONDITIONS OF SALE

I. Scope

  • These terms and conditions of sale apply exclusively for companies, persons with legal public rights, or public legal funds in terms of §310 Para 1 BGB (German Civil Law)
  • The following terms and conditions apply to all contracts concluded between the buyer and us for the supply of goods. They also apply to all future business relations, even if they are not again expressly agreed. Deviating conditions of the buyer, not expressly acknowledged by us, are non-binding, even if we do not expressly contradict them. The following terms of sale will apply even if we carry out the customer's order, without reservation, while being aware of conflicting, or differing clauses in the customer's terms. All agreements related to the application of the acts of sale concluded between the buyer and us are recorded in written form in the contracts.

II. Offer and Acceptance

  • An order, which is placed by the buyer and qualifies as an offer to conclude a contract, can be accepted by us within two weeks by sending an order acknowledgment or by delivery of the goods. 
  • Our offers are non-binding and subject to change, unless we have expressively stated these as binding. 
  • We unconditionally reserve property rights, copyrights as well as any other protective rights, particularly exploitation rights on all illustrations, calculations, drawings, estimates of expenses and other documents. The buyer may only pass these on to third parties with our written consent, irrespective of whether they were marked as "confidential" or not. 

III. Terms of Payment, Set-offs

  • Our prices are ex works and do not include packaging, unless stipulated otherwise in the order confirmation. Our prices do not include the statutory VAT (Value Added Tax); The VAT is stated in the invoice separately at the applicable rate at the date of the invoice. 
  • Unless otherwise agreed in writing with the buyer, cash discounts are not permitted. The purchase price is payable net (without deduction) immediately upon receipt of the invoice by the buyer, if no other payment term is given in the order confirmation.
  • The buyer will only have the right to set-off, retention or price reduction where the counterclaims are legally binding, non disputed, or have been recognized in writing, even where complaints are being made on the basis of defects, or counterclaims are being asserted. The buyer is only entitled to exercise a retaining lien where his claim lies within one and the same contractual relationship. 

IV. Delivery and Performance 

  • Delivery dates or periods which have not expressly been agreed as binding are taken exclusively as non-binding information. The delivery time stated by us will only begin when the technical issues have been clarified. Similarly, the buyer must duly fulfill all obligations incumbent upon the buyer in due time. 
  • In the event of an agreement stipulating fixed term delivery as a principle obligation, in terms of section 286 paragraph 2 No. 4 of the Germany Civil Code, or § 376 of the German Commercial Code, we will assume liability in accordance with the statutory provisions. The same applies if, as a result of a delivery default attributable to us, the buyer is entitled to claim the discontinuance of its interest in the further performance of the contract. In this case our liability is however limited to the foreseeable typically occurring damages, if the delivery delay does not involve a deliberate breach of contract for which we are responsible, whereby a fault on the part of our representatives or agents may be attributed to us. We are also liable towards the buyer in terms of statutory provisions, in the event of delivery delays, if such delay is be based on intentional or grossly negligent injury of the contract which can be represented to us, whereby a fault on the part of our representatives or agents may be attributed to us. Our liability is restricted to foreseeable and typically occurring damage if delayed delivery is not based on any breach of contract attributable to us.
  • In case a delivery delay for which we are responsible involves the culpable breach of a significant contractual duty or, for which any fault of our representatives or agents may be deemed to be attributable to us, we are liable as stipulated by the relevant statutory norms, provided that such liability shall be limited to those damages that could be typically expected to occur. 
  • Otherwise, in the case of a delivery default attributable to us, the buyer can claim a flat-rate compensation sum amounting to 3% of the value of the delivery for each complete week of delay, in total not exceeding 15% of the value of the delivery. 
  • Any further ongoing liability for delayed delivery attributable to us is precluded. Further statutory claims and rights to which the purchaser may be entitled in addition to damages as a result of a delay in delivery for which we are responsible remain unaffected. 
  • We are entitled to part deliveries and part services at all times insofar as this is deemed reasonable for the buyer. 
  • If the buyer defaults on acceptance, we are entitled to demand compensation for any losses or additional costs incurred. The same applies if the buyer culpably breaches its co-operation obligations. In case of default of acceptance or payment by the buyer, liability for the goods, risks of accidental impairment and loss, passes to the buyer. 
  • If the buyer is in default of acceptance, or fails to accept delivery within a specified time of no less than 2 calendar weeks, we, the vendor, will be entitled to withdraw from the contract or claim for non performance damages. In this case the buyer will be liable to a contract penalty to the amount of 15 % of the net invoice amount. In turn, the vendor is entitled to show that its actual damage is higher and to claim compensation for this actual damage. 

V. Transfer of risk - shipping/packaging 

  • Loading and Shipment take place uninsured and at the buyer's risk. We will make every effort to take into account the wishes and interests of the buyer with regard to the means of packaging and dispatch; any extra costs incurred thereby - even if freight-free delivery has been agreed - will be borne by the buyer. 
  • Transport packaging and all other packaging in accordance with the German packaging ordinance is non-returnable and becomes the buyer's property, except for re-usable euro pallets. The buyer shall dispose of all packaging at its own expense. 
  • If the shipment is delayed at the request or by fault of the buyer, we will store the merchandise at the expense and risk of the buyer. In this case notice that the goods are ready to be shipped shall be equivalent to the actual dispatch of the goods. 

VI. Warranty, Liability 

  • Warranty claims of the buyer only exist if the buyer has duly complied with his inspection and complaint obligations owed pursuant to § 377 of the German Commercial Code. 
  • With justifiable notices of defect, under exclusion of the buyer's right to withdraw from contract or to lower the purchase price (reduction), we are obliged to effect subsequent rectification - excluding the rights of the buyer to rescind the contract or to reduce the purchase price (reduction) - unless, due to the statutory regulations, we are entitled to refuse to effect subsequent rectification. The buyer shall concede a reasonable period of time for the remedying of defects. The vendor is entitled to choose between rectification and delivery of substitute goods and that only minor (insignificant) defects shall limit the buyer's rights to reduce the purchase price (reduction). In the event of a rectification, we will bear the necessary expenses, provided these do not increase because the subject of the contract is at a place other than the place of fulfillment. If the subsequent rectification fails the buyer may, at his option, request a reduction of the purchase price or rescind the agreement. Rectification counts as failed after the second futile attempt, unless further rectification attempts are appropriate due to the subject of the matter of the contract and if they are reasonable. Claims for damages, due to a defect relating to the following conditions, may only be asserted by the buyer should the supplementary rectification fail. The right of the buyer to assert a further claim according to the following conditions remains untouched. 
  • The warranty claims of the buyer will lapse one year after the delivery of the goods to the buyer, unless we have maliciously concealed a defect, in which event the provisions of law shall apply. Our obligations under section VI number 4 and section VI number 5 remain unaffected. 
  • We are liable, pursuant to the relevant legal provisions, for physical injury or injury to life or health arising from negligent or willful breach of duty on the part of ourselves, our legal representatives or our agents, and for damage or loss for which we are liable under the Product Liability Act. For damages not covered by the terms of the foregoing sentence, which are caused by willful or grossly negligent breaches of contract, or deceit by us, our representatives, or our agents, we are liable according to the statutory legal regulations. In this case however, our liability for damages shall be limited to the foreseeable typically occurring damage. Within the extent that we have provided a guarantee of the composition and/or durability of goods or components, we shall also be liable within the scope of this guarantee. We are only responsible for damages resulting from the lack of guaranteed durability or quality, but by which the goods are not affected directly, if the risk of such damage is obviously included in the guarantee of quality and durability. 
  • We will also be liable for damages caused by slight negligence, provided that such negligence concerns the infringement of contractual obligations the fulfillment of which mainly facilitates the proper performance of the contract and the observance of which the client relies on, and may rely on, regularly. We are however only responsible insofar as the damage is typically associated with the contract and can be anticipated. 
  • Any further liability is excluded irrespective of the legal nature of the asserted claim; this also applies especially to tort claims as well as to claims for compensation for wasted efforts in lieu of performance, without prejudice to our liability under section IV no. 2 to section IV, no. 5 of this contract. As far as our liability is excluded, or limited, this also applies to the personal liability of our employees, workers, staff, representatives and agents. 
  • Any buyer’s claims for damages on grounds of a defect will expire one year after delivery of the goods. This does not apply in the event of injury to life, limb or health which is our fault or that of our legal representatives or agents, or if we or our legal representatives have acted intentionally, or with gross negligence, or if our agents have acted intentionally. 

VII. Retention of Title 

  • Until the fulfillment of all claims (including all claims to balances from current accounts) to which we are entitled now, or in the future, against the buyer, the delivered goods will remain our property (reserved goods). In any case of breach of contract by the buyer, for example default of payment; we have the right to demand the return of the goods within an adequately notified period of time. If we take back retained property, this action constitutes a rescission of the contract. Distraint of the goods supplied under reserve represents a rescission of the contract. We are entitled to use the reserved goods as want after taking them back. After deducting an appropriate amount from the proceeds of such use, the balance will be set off against any amounts owed to us by the buyer. 
  • The buyer will treat the reserved goods with care and take out sufficient insurance at new reinstatement value against damage from fire, water and theft. Maintenance and inspections that may become necessary shall be carried out in good time by the buyer at his cost. 
  • The buyer is entitled to use or sell the reserved goods in the normal course of business as long as he is not in default of payment. Pledging or collateral assignments are inadmissible. Claims (including any account balance claims from the current account) arising out of the onward sale or another legal ground (insurance, unlawful act) with regard to the goods subject to retention are hereby assigned entirely by the buyer to the vendor to serve as security. We hereby accept the assignment. We authorize the buyer, revocably, acting on its own behalf, to collect all debts or claims assigned to us for our account. This collection authority can be revoked by us at any time if the buyer does not duly fulfill its payment obligations. The buyer is not entitled to assign such claims for the purpose of collecting the claims by way of factoring, unless the factoring party undertakes simultaneously to effect the counterperformance amounting to the portion of our claim directly towards us as long as our claims against the buyer continue to exist. 
  • Processing or restructuring of the reserved goods by the customer is always carried out on our behalf. If the reserved goods are combined with other objects not belonging to us, then we shall acquire co ownership of the new item in proportion to the ratio of the value our goods (purchase price plus value-added tax) to the other combined objects at the time of combination. For any new item resulting from this combination the same applies as for the reserved goods. In the case of inseparable combination of the reserved goods with other products which do not belong to us, we will acquire co-ownership of the new product in proportion to the ratio of the value our goods (purchase price plus value-added tax) to the other inseparably combined goods at the time of combination. If the object of the buyer is deemed to be the main object as a result of such combination, we and the buyer are in agreement that the buyer assigns us the proportional co-ownership of this object; we hereby accept the assignment. The buyer will keep our resulting sole property or coowned property in custody for us. 
  • If the reserved goods are seized by a third party, in particular in the case of garnishments, the buyer shall point out that we are the owner and shall inform us immediately so that we can assert our rights of ownership. Insofar as the third party is not able to reimburse the judicial or extrajudicial charges arising in relation to this, the buyer is liable for them. 
  • We are obliged to release any securities we hold if their value exceeds 10 per cent of the value of any claims against the buyer, provided that we are free to elect which specific securities we hold. 

VIII. Place of Fulfillment / Jurisdiction / Applicable Law 

  • The principle office of the vendor is the place of fulfillment and place of jurisdiction for all deliveries and payments (including legal proceedings concerning cheques or bills of exchange) as well as all disputes between the parties arising from the contracts they have concluded together. We are also entitled to sue the buyer at his residential or business address.
  • The relationship between the contracting parties is subject exclusively to the laws of the Federal Republic of Germany, and under exclusion of the UN Convention of the International Sale of Goods (CISG). 

IX. Conclusion 

  • Should individual provisions of these General Terms and Conditions be, or become invalid, this shall not affect the validity of the remaining provisions. Instead of the invalid or ineffective provision an alternative provision will be made with one that comes closest in pursuance of the economic aims, unless the ineffectiveness follows from the terms of the General Terms and Conditions. In this case statutory provision remains instead of a contractual adjustment.

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