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GENERAL TERMS AND CONDITIONS


§ 1 General, Scope of Application

1) These General Terms and Conditions (GTC) shall apply to all business relations with our customers (hereinafter: “Buyer”). The GTC shall only apply if the Buyer is an entrepreneur (§14 German Civil Code (BGB)), a legal entity under public law or a special fund under public law.

(2) The GTC shall particularly apply to contracts for the sale and/or the delivery of movable objects (hereinafter also: “goods”), irrespective of whether the goods are manufactured by ourselves or purchased from subcontractors (§§ 433, 651 German Civil Code). The GTC shall, in their respective current version, also apply as general agreement for future contracts on the sale and/or the delivery of movable objects with the same Buyer, without us having to refer to these again in each individual case; in this instance, we shall inform the Buyer of any amendments to our GTC without delay.

(3) Our GTC shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become an integral part of the contract, if and to the extent that we have given our express consent to their application. This consent requirement shall apply in any case, for example also in cases where, having knowledge of the GTC of the Buyer, we perform delivery to him without reservation.

(4) Individual agreements made with the Buyer on a case-by-case basis (including collateral agreements, amendments and alterations) shall in any event take precedence over these GTC. A written contract or our written confirmation shall be decisive for the content of such agreements.

(5) Legally relevant declarations and notifications which are to be made to us by the Buyer after conclusion of the contract (e.g. setting of deadlines, notices of defects, declaration of cancellation or reduction) shall require the written form in order to be effective.

(6) Any references to the application of statutory regulations shall be for purposes of clarification only. Therefore, the statutory regulations shall also apply without such a clarification insofar as they are not directly changed or explicitly excluded in these GTC.

§ 2 Conclusion of Contract

(1) Our offers are subject to change and non-binding. This shall also apply if we have supplied the Buyer with catalogues, technical documentation (such as drawings, plans, calculations, costings, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve ownership rights and copyrights.

(2) The order of the goods by the Buyer shall be deemed to be a binding contractual offer. Unless stated otherwise in the order, we shall be entitled to accept this contractual offer within 8 weeks upon receipt.

(3) Acceptance shall either be declared in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.

§ 3 Delivery Period, Delay in Delivery

(1) The delivery period shall be agreed individually or it shall be stated by us upon acceptance of the order. Compliance with delivery periods on our part shall presuppose that all commercial and technical issues between the contracting parties have been clarified and that the Buyer has fulfilled all obligations incumbent on him, such as effecting a down payment. If this is not the case, the delivery period shall be extended appropriately. This shall not apply if we are responsible for the delay.

(2) Compliance with the specified delivery period shall be subject to the proviso that we ourselves are supplied with the correct goods in due time.

(3)(3) Insofar as we cannot comply with binding deadlines for reasons for which we are not responsible (non-availability of the service) we shall inform the Buyer hereof immediately and, at the same time, notify the Buyer of the new estimated delivery period. In the event that the service is still not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall reimburse any counter-performance rendered by the Buyer without undue delay. Non-availability of the service within the meaning of this provision shall in particular include cases of late supply of goods to ourselves, provided that we have concluded a congruent hedging transaction, that neither we nor our suppliers can be held responsible for the delay or that, in the individual case, we are not obliged to procure the goods.

(4) The occurrence of a delay in delivery shall be determined in accordance with statutory regulations. However, a reminder by the Buyer shall be required in any event.

(5) If dispatch or acceptance of the delivery item is delayed for reasons for which the Buyer is responsible, the Buyer shall be charged with the costs incurred by the delay, beginning one month after notification of readiness for dispatch or acceptance.

(6) If non-compliance with the delivery period is due to force majeure, industrial disputes or any other events beyond our control, the delivery period shall be extended appropriately. We shall notify the Buyer of the commencement and the end of any such circumstances as soon as possible.

(7) The rights of the Buyer pursuant to § 8 of these GTC as well as our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected.

§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

(1) Delivery shall be effected ex works, which is also the place of performance. When required by the Buyer, the goods shall be sent to another place of destination (sales shipment) at the Buyer’s expense. Unless agreed otherwise, we shall be entitled to determine the mode of dispatch (in particular carrier, dispatch route, packaging) ourselves.

(2) The risk of accidental perishing and deterioration of the goods shall pass to the Buyer upon delivery of the goods at the latest. In the event of a sales shipment, however, the risk of accidental perishing and deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the carrier, the freight forwarder or any other person or institution designated to effect the dispatch. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In the event of an agreed acceptance, the statutory regulations of the German law on contracts for work and services shall apply accordingly in all other respects. If the Buyer is in default of acceptance, delivery or acceptance shall be deemed to have been effected.

(3) In the event that the Buyer is in default of acceptance, fails to perform an act of cooperation or that delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to claim compensation for damages resulting thereof, including additional expenses (e.g. warehousing costs). For this purpose, we shall charge a lump-sum compensation amounting to 1 % of the net value of the goods per calendar day, beginning with the delivery period or – in the absence of a delivery period – with the notification of readiness for dispatch.
The proof of higher damage and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum is to be set off against further monetary claims. The Buyer shall be entitled to prove that we suffered no damage at all or that the damage was substantially lower than the above-mentioned lump sum.

§ 5 Prices and Terms of Payment

(1) Unless agreed otherwise in the individual case, our prices currently valid at the time the contract is concluded shall apply, ex works plus statutory value added tax.

a. For deliveries within the European Union, the Buyer shall provide his VAT identification number in due time prior to the agreed delivery date as proof of his exemption from VAT. In the event that such information is not provided on time and in full, we shall reserve the right to charge the VAT at the applicable statutory rate.

b. For deliveries outside the European Union, we shall be entitled to charge the VAT at the applicable statutory rate if the Buyer does not provide us with an export certificate within one month of the respective dispatch.

(2) In the event of a sales shipment (§ 4, par.1) the Buyer shall bear the costs of transport ex warehouse as well as the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public dues shall be borne by the Buyer. Transport packaging and all other packaging in accordance with the Packaging Ordinance is non-returnable; it shall become property of the Buyer, except for pallets.

(3) The purchase price is due and payable immediately after receipt of the invoice and delivery or acceptance of the goods. In the event of contracts with a delivery value of more than EUR 200.00 we shall be entitled to demand a down payment amounting to at least 50% of the purchase price. The down payment is due and payable within 7 days of invoicing.

(4) Upon expiry of the above-mentioned term of payment, the Buyer shall be in default of payment. During default of payment, the Buyer shall be obliged to pay interest on the purchase price at the respective statutory default interest rate. We shall reserve the right to assert further claims for damages caused by delay. Against merchants, our claim to commercial interest payable after due date (§ 353 German Commercial Code (HGB)) shall remain unaffected.

(5) The Buyer shall only be entitled to rights of set-off or rights of retention insofar as his claims are either uncontested or have been established by a final judgement. In the event of defects in delivery the opposing rights of the Buyer, in particular pursuant to § 7 par. 6 sentence 2 of these GTC, shall remain unaffected.

(6) If, after conclusion of the contract, it becomes apparent that our entitlement to the purchase price is at risk due to a lack of ability to perform on the part of the Buyer (e.g. through a request for the opening of insolvency proceedings), we shall be entitled – in accordance with the statutory regulations – to refuse performance and to withdraw from the contract, if applicable after setting a deadline (§ 321 German Civil Code). In the event of contracts for the manufacture to specification (custom-made items) we shall be entitled to declare our withdrawal from the contract immediately; the statutory regulations concerning the dispensability of setting a deadline shall remain unaffected.

7) Bills of exchange shall not be accepted.

§ 6 Retention of Title

(1) We shall retain title to the goods sold until all current and future claims arising from the purchase contract and the current business relationship (secured claims) have been paid in full.

(2) Prior to complete payment of the secured claims, the goods subject to retention of title shall neither be pledged nor assigned by way of security to third parties. The Buyer shall be obliged to notify us immediately in writing if and insofar as third parties gain access to or seize goods belonging to us.

(3) If the Buyer acts in a way contrary to the contractual obligations, in particular in the event of non-payment of the due purchase price, we shall – in accordance with the statutory regulations – be entitled to withdraw from the contract and/or demand surrender of the goods subject to retention of title. A demand to surrender the goods shall not simultaneously include the declaration of withdrawal from the contract; we shall rather be entitled to merely demand surrender of the goods and reserve the right to withdraw from the contract. If the Buyer does not pay the due purchase price, we shall only be entitled to assert these rights after having set the Buyer a reasonable term of payment to no avail or in the event that the setting of such a deadline is dispensable according to statutory regulations.

(4) The Buyer’s request for the opening of insolvency proceedings shall entitle us to withdraw from the contract and to demand the immediate return of the delivery item.

(5) In the event of seizure of the goods or other interventions by third parties prior to the passage of title, the Buyer is to inform us immediately in writing. If the third party is incapable of reimbursing us for any extra-judicial costs and / or costs of successful third-party proceedings or costs for any other legal remedies, the contracting party shall be obliged to compensate us for any damages thereby incurred.

(6) The Buyer shall be entitled to resell and/or process the goods subject to retention of title within the scope of normal business activities. In this case, the following provisions shall apply additionally.

(a) The retention of title shall extend to the full value of all products generated by processing, mixing or combination of our goods whereby we shall be deemed to be the manufacturer. If the ownership rights of third parties remain in force in the event of processing, mixing or combination with their goods, we shall retain co-ownership in the processed, mixed or combined goods in proportion to the invoice value of the newly produced goods. In all other respects, the same provisions shall apply to the resulting product as apply to the goods delivered subject to retention of title.

(b) Any claims against third parties arising from reselling the goods or product shall here and now be assigned to us by the Buyer by way of security, in full or to the extent of our possible share of co-ownership pursuant to the preceding paragraph. We shall accept the assignment. The obligations of the Buyer referred to in paragraph 2 shall also apply to the assigned claims.

(c) Both we and the Buyer shall be authorised to collect debts. We shall undertake to refrain from collecting the debt as long as the Buyer meets his payment obligations towards us, is not in default in payment, and as long as neither a request for the opening of insolvency proceedings nor any other lack of ability to perform exists. If, however, this should be the case, we shall be entitled to demand that the Buyer informs us about the assigned claims and their debtors, that he provides us with all information and documents necessary to collect the claims and that he notifies the debtors (third parties) of the assignment.

(d) If the realisable value of the securities exceeds our claims by more than 10%, we shall, on request of the Buyer, release securities of our choice.

§ 7 Warranty

(1) Unless otherwise agreed in the following, the statutory regulations shall apply to the rights of the Buyer in case of material defects and defects of title (including wrong and short delivery as well as improper assembly or faulty assembly instructions). The special statutory regulations on the final delivery of goods to a consumer (supplier’s recourse pursuant to §§ 478, 479 German Civil Code) shall remain unaffected in any event.

(2) The basis for our liability for defects shall be the agreement concluded on the quality structure of the goods. All product descriptions which are subject-matter of the individual contract shall be deemed to be an agreement on the quality structure of the goods; it shall make no difference whether the product description originates from the Buyer, the manufacturer or from ourselves.

(3) Customary or technically unavoidable deviations in quality, colour, weight or design shall be excluded from complaint.

(5) Any claims for defects on the part of the Buyer shall presuppose that he has complied with his statutory obligations to examine and give notice of defects (§§ 377, 381 German Commercial Code). In the event that a defect is found during the examination or later, we are to be notified thereof immediately and in writing. The notification shall be deemed to have been made immediately if it is made within one week. Irrespective of this obligation to examine and give notice of defects, the Buyer shall be obliged to report any apparent defects (including wrong and short delivery) in writing within two weeks of delivery. If the Buyer fails to effect the proper examination and/or the notice of defects, our liability for the defect which has not been reported shall be excluded.

(6) In the event that the delivered item is defective, we shall be entitled to initially choose whether we provide subsequent performance by eliminating the defect (subsequent improvement) or by delivering an item free of defects (substitute delivery). Our right to refuse subsequent performance in accordance with the statutory provisions shall remain unaffected.

(7) We shall be entitled to make the subsequent performance owed by us conditional on the Buyer paying the purchase price due. The Buyer, however, shall be entitled to retain a part of the purchase price which is in reasonable proportion to the defect.

(8) The Buyer shall be obliged to grant us the time and opportunity necessary to effect the subsequent performance owed by us; in particular, he shall be obliged to hand over the rejected goods for purposes of inspection. In the event of substitute delivery, the Buyer shall, in accordance with the statutory regulations, be obliged to return the defective item. In the event that initially, we were not responsible for the assembly of the item in question, subsequent performance shall neither include the disassembly nor the reassembly of the defective item.

(9) In the event that a defect actually exists, we shall bear all expenditures necessary for the purpose of examination and subsequent performance, in particular transport, road, labour and material costs (not: costs for assembly and disassembly). If, however, the Buyer’s request for remedy of a defect proves to be unjustified, we shall be entitled to demand reimbursement of the costs thereby incurred from the Buyer.

(10) If subsequent performance has failed or a deadline for subsequent performance set by the Buyer has elapsed to no avail or in the event that the setting of such a deadline is dispensable according to statutory regulations, the Buyer shall be entitled to withdraw from the purchase contract or to reduce the purchase price. In the event of a minor defect, however, the Buyer shall not be entitled to withdraw from the contract.

(11) Claims for damages or compensation for wasted expenditure on the part of the Buyer shall only exist in accordance with § 8 and shall otherwise be excluded.

(12) No warranty shall be granted in the following cases in particular: unsuitable or improper use, incorrect installation or putting into service by the Buyer or by third parties, natural wear, incorrect or negligent handling, improper maintenance, unsuitable operating materials, chemical or electrochemical or electrical influences, to the extent that the same cannot be ascribed to us.(13) If the Buyer or a third party carries out improper repairs we shall not be liable for any consequences arising therefrom. The same shall apply for any modifications made to the delivery item without prior agreement of the Supplier.

§ 8 Other Liabilities

(1) Unless otherwise stipulated in these GTC including the following provisions, we shall be liable according to the relevant statutory regulations in the event of a breach of contractual and non-contractual obligations.

(2) Irrespective of the legal basis, we shall only be liable for damages in the event of intent and gross negligence. In the event of ordinary negligence, we shall only be liable for

a) damages resulting from injury to life, body or health,

b) damages resulting from the breach of a material contractual obligation (an obligation the fulfilment of which is essential for the proper implementation of the contract and on the fulfilment of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to foreseeable, typically occurring damages.

(3) The limitations of liability resulting from par. 2 shall not apply insofar as we have fraudulently concealed a defect or provided a guarantee for the quality structure of the goods. The same shall apply to claims on the part of the Buyer under the German Product Liability Act (ProdHaftG).

(4) In the event of a breach of duty which is not attributable to a defect, the Buyer shall only be entitled to withdraw from or terminate the contract if we are responsible for such a breach of duty. An unrestricted right of termination on the part of the Buyer (in particular pursuant to §§ 651, 649 German Civil Code) shall be excluded. In addition, the statutory provisions and legal consequences shall apply.

§ 9 Statute of Limitation

(1) By way of derogation from § 438 par. 1 No. 3 German Civil Code, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance is agreed the limitation period shall begin upon acceptance.

(2) However, if the goods are a building or an object which, in accordance with its customary use, has been used for a building and has caused the defectiveness thereof (building material), the limitation period shall be 5 years from delivery pursuant to the respective statutory regulation (§ 438 par. 1 No. 2 German Civil Code). Special statutory regulations concerning claims for surrender of purchased items made by third parties (§ 438 par. 1 No. 1 German Civil Code), fraudulent intent on the part of the supplier (§ 438 par. 3 German Civil Code) and claims for supplier’s recourse in case of final delivery to a consumer (§ 479 German Civil Code) shall also remain unaffected.

(3) The above-mentioned limitation periods under the sale of goods law shall also apply to contractual and non-contractual claims for damages on the part of the Buyer based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 German Civil Code) would result in a shorter limitation period in the individual case. The limitation periods under the German Product Liability Act shall remain unaffected in any event. In other respects, any claims for damages on the part of the Buyer pursuant to § 8 shall exclusively be governed by the statutory limitation periods.

§ 10 Choice of Law and Jurisdiction

(1) These GTC and all legal relationships between us and the Buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular excluding the UN Convention on Contracts for the International Sale of Goods (CISG). Prerequisites for and effects of the retention of title pursuant to § 6 shall be subject to the law applicable at the respective location of the object if, under said law, a choice of law in favour of German law is inadmissible or void.

(2) In the event that the Buyer is a businessperson within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship shall be Hof/Saale. However, we shall also be entitled to take legal action at the place of general jurisdiction of the Buyer.

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