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I. VALIDITY 1. Unless explicitly agreed otherwise, these general terms and conditions of delivery and payment shall apply for all our supplies and services in our business interactions with our customers, with legal entities incorporated under public law and with special funds under public law. They shall apply exclusively; we do not recognize conflicting conditions or those that diverge from our general terms and conditions or from statutory provisions, unless we have specifically agreed that these will be valid. This shall also apply even if we have not expressly objected to them or if we have performed the services without reservation. 2. Any supplementary verbal agreements concluded up to signing of the contract and deviating from our terms and conditions are only effective if they have been confirmed in writing by us. II. OFFER AND CONCLUSION OF PURCHASE AGREEMENT 1. Unless specifically agreed otherwise, documents attached to an offer such as drawings, diagrams, technical data, references to standards and information given in advertising material, although compiled to the best of our knowledge at the time of submitting the offer, are deemed to be indicative only. These are subject to the upper and lower tolerance variations customary in the industry and that will be admissible. 2. Our offers are always subject to change. We may accept an order from our customer within two weeks after its submission. Orders are irrevocable until expiry of this period. Do not assume that a contract has been concluded if we fail to respond. If there is a delay in receipt of our order confirmation by customer we are to be informed of this immediately. 3. Should customer's letter of confirmation deviate from, add to or limit our order confirmation, customer must highlight the changes particularly as such. 4. Correspondence is to be conducted with our department responsible. Every modification to our order confirmation must be confirmed in writing by our competent department in order for it to become effective. III. PRICES AND PAYMENT 1. Our prices are ex works excluding freight, customs duties and insurance plus statutory sales tax at the rate applicable. In the case of deliveries to other countries all taxes, customs duties and other public dues to be paid abroad shall be reimbursed by customer. 2. We shall be entitled to increase the prices agreed on signing the contract if there are more than four months between signing the contract and delivery and the cost factors to be applied for our performance (e.g. material prices, wages) have increased since the contract was signed, whereby in order to be fair the respective cost increase should be the benchmark. This shall not apply if our customer on sells the goods processed by us directly to a consumer, after further processing or via a distributor, without him being entitled to pass on the price increase to his buyers. § 313 BGB (German Civil Code) shall not be affected. 3. Payment shall be made by cheque, bank transfer, bank giro or post office transfer. In the event of a transfer payment shall not be deemed to have been made until the money is credited to our account. Cheques are accepted only for the purposes of payment. If a cheque is accepted payment shall not be deemed to have been received until the cheque has been honoured. We expressly reserve the right to refuse bills of exchange. Bills of exchange are accepted for the purposes of payment. If a bill of exchange is accepted payment is deemed to have been received only when it is honoured. Bank, discount and collection fees are to customer's account and are due immediately. 4. Invoices are issued on the day of delivery; if customer collects the goods the day of delivery shall be deemed to be the day on which the goods were made available. Invoices are payable in full within 10 days. 5. In the event our customer is in default of payment interest will be charged in accordance with the respective bank rates for overdraft facilities, but as a minimum according to the statutory regulations. 6. If our payment claims are at risk due to a substantial deterioration in the customer's financial circumstances, we shall be entitled, any other legal rights notwithstanding, to call in the amounts owed from the contract or to demand appropriate securities. This shall not apply if these circumstances were already identified by us, or if we should have identified them, when the contract was being concluded. Insofar we are also entitled to render any outstanding performance only against advance payment or provision of an appropriate security. The following situations in particular will be deemed substantial deterioration in financial circumstances: - Application to initiate insolvency proceedings in respect of the assets of our customer; - suspension of payments of our customer; - bills of exchange or cheques from our customer not honoured on time - payment default by more than 60 days. Our customer is free to provide evidence to the contrary to demonstrate that there has been no deterioration in his financial circumstances and that our claim for payment is not at risk. If our customer does not comply with our demand to either pay the agreed price in the above mentioned form within an appropriate period concurrently with delivery or to provide security, we shall be entitled to withdraw from the contract. 7. The customer shall only be entitled to rights of offset and retention if his counterclaim has been legally established or is uncontested. IV. DELIVERY AND DISPATCH, ACCEPTANCE 1. Delivery dates may be agreed on a binding or non-binding basis. A pre-contractual agreement about delivery dates is only effective if it is executed in writing. If the customer does not provide the goods as agreed or not in good time, the agreed delivery dates will be extended by an appropriate period. Compliance with delivery dates also presupposes timely access to all documents, required permits and approvals to be provided by customer, as well as adherence to the agreed terms of payment and other performance obligations of customer. 2. It is also conditional on punctual delivery of the correct materials to us by our sub-suppliers. In addition, it is conditional on our ability to deliver. 3. Any cases of force majeure occurring or becoming known after signing of the contract and other unforeseeable operational disturbances for which we are not responsible such as strikes, lock-outs, war, riots, shortages of raw material, machine damage, government measures, which do not just last a short time and over which we have no influence even by taking the most cautious course of action, will extend the delivery dates by the duration of said events, but by a maximum of 6 months. We will notify our customer of any cases of force majeure or other operational disturbances that are likely to last longer than 8 weeks. Our customer shall be entitled to withdraw from the contract if the agreed delivery date has been postponed by a period of at least six months as a result of the circumstances described in paragraph 1 above. This right of rescission must be exercised in writing and presupposes that we have previously been given the opportunity, combined with a minimum two-week written period of notice, to render the performance. Insofar as we are unable, as a result of the circumstances named in paragraph 1, to render the performance in the long term, we will be relieved of our obligation to perform. Claims for damages on the part of our customer are excluded in all the above mentioned cases. 4. If the customer does not take delivery in time of the goods offered, we– all other rights notwithstanding - shall be entitled to store the goods on our premises or in a storage facility or with a freight carrier at customer's cost and risk. Moreover, we shall be entitled, but not obliged, to grant our customer an appropriate period of grace in writing, accompanied by a declaration that after expiry of this period we decline to render the performance. Following unsuccessful expiry of the grace period we shall be entitled to withdraw from the contract by means of written declaration or to require compensation in lieu of performance. There is no need to grant a period of grace if our customer has seriously and conclusively refused to accept the goods or is obviously not able to accept the goods within the period of grace. If we demand compensation in lieu of performance 20% of the agreed net price is to be reimbursed as lump sum compensation: the assertion of a claim for further damages is not precluded. Customer shall have the right to prove that we have not suffered a loss or that the loss was much smaller than claimed. 5. On transfer of the goods to a shipper or freight forwarder, but at the latest on leaving the warehouse of the supplying plant, risk passes to customer for all business transactions. 6. Following consultation with our customer we shall be entitled to make part-deliveries, unless the acceptance of part-deliveries is not reasonable for our customer in consideration of our position compared with his own legitimate interests. 7. We are entitled to produce the entire order volume at one time. Any change requests following award of an order are subject to mutual agreement. 8. If acceptance has been agreed it must take place immediately after notification of completion. The costs for acceptance are to be borne by customer. If an agreed acceptance does not take place on time or is not completed for reasons for which we are not responsible, the acceptance will be deemed to have taken place following a written request to perform acceptance and expiry of an appropriate period, provided we have drawn attention specifically to this consequence. The taking into use of the goods processed by us by customer or a third party with customer's assent shall be deemed acceptance. V. DELAY 1. In the event of delay our liability as a result of delay in performance under the following conditions shall be in accordance with the statutory provisions. We shall not be liable for loss of revenue, loss due to interruption of business, and indirect or consequential damage. Apart from that our liability is limited to 0.5 % of the net order value for each full week of delay, and to a maximum of 5% of the net order value in total. A deficient performance is not deemed to be late delivery. These limitations of liability shall not apply in the event of deliberate or grossly negligent conduct on our part. The above provisions do not entail a change in the burden of proof. 2. At our request customer shall declare within a reasonable period whether he will withdraw from the contract because of the delay or whether he insists on delivery. VI. RETENTION OF TITLE 1. The goods supplied remain our property until payment in full of all claims against the customer. The customer is obliged to handle the retained goods (conditional commodities) with care and to adequately insure them at his cost against theft, breakage, fire, water and other damage and to provide us with evidence of this if requested. The customer hereby authorises us to pursue all claims for damages from these insurance policies. 2. Our retention of title notwithstanding, our customer is however entitled to sell or further process the retained goods within the scope of his normal business (however, see VI. 3.). The assignment as security and pledging of the retained goods in favour of third parties without our consent are precluded; the customer is obliged to inform us immediately of a seizure of the retained goods by third parties. 3. The authority of our customer to sell the retained goods in its regular course of business ends whenever there is a substantial deterioration in customer's financial circumstances. Section III.6 specifies the conditions for a substantial deterioration of the customer's financial circumstances. In this case our customer is obliged to give us the retained goods upon our first demand. We are entitled to dispose of released retained goods at our discretion and to credit customer with the proceeds. This does not affect any further claims or entitlements. 4. As a safeguard, customer hereby assigns to us claims against third parties resulting from his on selling of the retained goods, even if they are processed, combined or commingled with other commodities. Any prior pledging of claims in favour of third parties or assignment of claims to third parties is precluded except with our consent. However, customer is obliged to inform us immediately of a pledging of these claims by third parties. If the retained goods are sold by our customer together with other items, the assignment of the claim from the on selling will apply only to the on selling value of the respective retained goods that have been on sold. 5. Customer is entitled to collect receivables assigned to us. We are entitled to retract the authority to collect receivables in the circumstances stated in Section III.6 and in the event of customer defaulting on payment. Customer is obliged to name the third party debtors at our request and to inform such of the assignment. The processing or transformation by our customer of the retained goods supplied by us is always done on our behalf. If the retained goods are processed with other items not belonging to us, we acquire co-ownership of the new item according to the ratio between the value of the retained goods and the value of the other processed items at the time of processing. Otherwise the same shall apply to the item resulting from processing as for the goods subject to retention of title. If our item is inseparably combined or commingled with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of our goods and the value of the other item at the time they were combined or commingled. If the items are commingled in such a way that the customer's item is to be regarded as the main item, it is deemed to be agreed that the customer shall transfer co-ownership to us on a prorate basis (to the extent defined in sentence 1). Customer will keep our resulting property on our behalf. 6. Insofar as the value of the security interests to which we are entitled exceeds the value of the secured claims by more than 10%, we will release a corresponding share of the security interests at customer's request. 7. We retain the property rights, usage rights, design models, patent rights, copyrights, privacy rights and other industrial property rights over and beyond the delivery item, particularly in respect of diagrams, drawings and other documents, designs, design proposals, templates, samples, factory specifications, forms, copyrights, know-how and calculations provided by us in hard copy or electronic form. 8. In the event of a substantial deterioration in the financial circumstances of customer (III.6 applies) customer shall be obliged to immediately send us a list of the retained ownership goods still existing and a list of his receivables from the sale of the retained ownership goods as well as copies of invoices. |
VII. MATERIAL PROVIDED 1. On awarding us the order customer shall clearly advise in writing the precise composition of the material provided, the structure, type and scope of pre-treatments, sizing agents used and colour-fastness. 2. The goods made available by our customer must meet the agreed specification and must otherwise be undamaged, homogeneous and without contaminants, free of foreign bodies or similar manifestations. If these conditions are not met due to the fault of our customer we shall be entitled to demand the costs for extra work and replacement for damaged machinery and/or to withdraw from the contract. We are only obliged to inspect the material provided if this has been specifically agreed with customer. We are entitled, but not obliged, to take raw and finished samples from the material provided. 3. Transport costs and all other costs incurred for providing the material shall be paid by customer. 4. A contractual lien in our favour shall apply to the goods provided to us for processing in respect of all claims arising from our business relationship with the customer. This does not affect statutory liens. 5. The provision of the material is at the customer's cost and risk. If the material provided to us cannot be used for processing for reasons attributable to us the customer shall supply replacement goods at our request. There will be no extra charge for any necessary additional processing of the replaced goods; however, costs for the material replacement and its delivery shall be borne by customer. This shall not apply in the case of strict liability as defined in Section IX. The above provision does not entail a change in the burden of proof. 6. Material provided and will make corresponding documentation available. VIII. WARRANTY 1. In the event of a deficiency upon transfer of risk we will remedy this either by rectifying the fault or by new performance. Moreover, we are also entitled if we wish to supply replacement processed goods free of defects, corresponding to the goods made available to us by customer. Rectifications of defects or new performance are always executed by us as a gesture of goodwill and without acknowledging a legal obligation. Such acknowledgement shall only exist if we declare this to the customer. 2. Claims on the part of the customer due to the expenses necessary for new performance, in particular transport, infrastructure, work and material costs, are precluded, provided that the costs are increased because the goods have subsequently been brought to a location other than the customer's place of business, unless the transfer complies with the intended use of the goods. 3. At our request customer shall declare within a reasonable period whether he will withdraw from the contract because of a defect or whether he insists on performance. 4. Claims of recourse against us pursuant to § 478 BGB (German Civil Code) shall apply only insofar as the customer has not made any agreements with his customer that exceed the statutory warranty rights. 5. We are liable for claims for compensation and reimbursement of expenditure due to faulty deliveries only according to the provisions of Section IX. below. IX. COMPENSATION AND REIMBURSEMENT OF EXPENDITURE 1. We shall be liable for claims for compensation and reimbursement of expenditure solely according to the legal requirements and in accordance with the following provisions. However, the provisions on delay in delivery (Section V.) shall take precedence. 2. Irrespective of the legal basis we shall not be liable for compensation or reimbursement of expenditure - particularly due to defects, violation of obligations deriving from the contractual obligation and tort. This applies in particular, but not exclusively, for claims for damages due to loss of revenue or profit, financing costs or damages as a result of plant shutdown or interruption of production as well as indirect loss and consequential damage. This also applies for loss or damage caused by the processed goods and incurred by third parties or other legal assets of the customer (e.g. damage to other items). 3. The above exclusion of liability shall not apply under the following circumstances: a) in case of intent; b) in case of gross negligence; c) if a warranty provided by us contradicts this; d) in the case of culpable harm to life, limb or health; e) in the event of liability according to the Product Liability Act; f) in the case of culpable infringement of a substantial contractual obligation on our part. In the event of slight negligence, however, liability is insofar limited to the foreseeable damage typical for this type of contract, unless liability is as a result of damage to life, limb or health or according to the product liability act. Major contractual obligations are such obligations, the fulfilment of which is essential for proper performance of the contract and adherence to which the customer relies on and may rely on as a matter of course 4. The above provisions do not entail a change in the burden of proof. 5. Insofar as our liability is limited, this shall apply also to the corresponding personal liability of our employees, vicarious agents and representatives. 6. Customer is obliged to undertake a careful inspection of the goods processed by us before using them within the scope of his damage mitigation obligations. In particular, this includes a trial use of the goods, insofar as damage to the goods cannot be identified except under certain conditions of use and there is a threat to life, limb or health. X. PERIOD OF LIMITATION 1. The period of limitation for claims and entitlements due to a deficiency (compensation instead of or as well as performance, claims for compensation of expenditure, reduction, rescission or supplementary performance) is 12 months. 2. By way of derogation from paragraph 1 the statutory limitation period a) applies in respect of all claims and entitlements of customer in the event of § 438 section 1 No. 1 BGB (German Civil Code) (rights in rem of third parties, which entitle them to claim the item), § 438 section 1 No. 2 and § 634a section 1 No. 2 BGB (German Civil Code) (buildings and building structures), § 479 section 1 BGB (German Civil Code) (right of recourse) or a fraudulent concealment of the defect by us and in the case of claims for damages additionally b) in the case of culpable injury to life, limb or health, claims deriving from the product liability act and grossly negligent or intentional infringements of obligations. 3. For other claims of customer against us the regular period of limitation will be reduced to two years from the statutory date of commencement of period of limitation. This does not apply for claims for compensation due to intent or gross negligence or culpable injury to life, limb or health. XI. APPLICABLE LAW AND JURISDICTION 1. The legal relations between our customer and us are governed exclusively by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (UN purchasing law/CISG). 2. Exclusive jurisdiction, and this also applies to suits relating to bills of exchange and cheques, is Wesel, insofar as the customer is a registered merchant, a legal entity or special fund under public law. However, we are entitled to also institute proceedings against the customer in his general jurisdiction or another court of competent jurisdiction. XII. MISCELLANEOUS 1. Customer undertakes to treat confidentially all knowledge of confidential information and trade secrets obtained from us within the scope of contractual performance (hereinafter referred to as: "information") and to use it only as per the terms of the contract. This does not apply to such information which a) is generally known or will become known or b) was already known to customer on signing the contract, without this involving a violation of a confidentiality agreement or statutory regulations. The above obligations shall apply for a period of 10 years after termination of the contract. 2. Place of performance and fulfilment for all deliveries and payments is WESEL. Place of fulfilment for supplementary performance corresponds to the original place of fulfilment of the delivery. 3. Should any provision of these conditions or a provision within the scope of other agreements be invalid or become invalid, this will not affect the validity of the remaining provisions of the contract as a whole. The same shall apply to any contractual omissions. 4. There is no need for either a handwritten or electronic signature to satisfy the requirement for the written form. Telefax or email messages and other forms of text also satisfy the written form requirement. As of February 17th, 2011 |