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General terms and conditions

1. Acceptance of Orders

2. Prices and Partial Deliveries

3. Dispatch

4. Legal Guarantees, Notification of Defects and Right of Recourse

5. Rights of Rescission

6. Payment

7. Retention of Title

8. Final Provisions

1. Acceptance of Orders

a) Our terms and conditions apply exclusively to companies and juridical persons under common law or publicly-owned funds and assets in accordance with § 310 BGB (Article 310, German Civil Code). Terms and conditions contrary or divergent to our conditions of sale are recognised only where prior written explicit agreement was given.

b) All agreements between us and the purchaser pertaining to the execution of this contract are contained in written form herein. All information in catalogues, data sheets and proposals are only close approximations. The cost of preparation of proposals, estimates, quotations and plans will be charged.

c) Orders are deemed as accepted only after our written confirmation of order. The same shall also apply to supplements, amendments, changes, deletions and other collateral agreements.

d) Our General Terms & Conditions also apply to any future commercial relationships with the purchaser.

2. Prices and Partial Deliveries

a) Prices contained in the order confirmation are binding.

b) All prices are inherently understood as ex-works, excluding packaging and duty unpaid (export). Should, in the time between conclusion of the contract and delivery, the supplier prices, our costs (e.g., an increase in freight costs, salaries and raw material costs) or fees and duties be increased or newly introduced, we shall be entitled to increase our prices accordingly, unless a fixed price has been expressly agreed and confirmed. Value added tax (VAT) in accordance with local legal requirements will be levied separately. Eventual increases in the VAT rate in the time between order and delivery, or service, will be borne by the purchaser

c) We are entitled to make partial deliveries.

3. Dispatch

a) Shipments are made ex-works or ex-warehouse. Upon transfer of the goods to the freight forwarder the risks of damage or breakage as well as the onus of proof in respect of proper packaging and loading are passed to the purchaser. This also applies to Franco-shipments.

b) Article 3 a) also applies where delivery is made with our own in-house fleet.

c) Where the goods need to be stored on our premises, risks and costs will be carried by the purchaser. Should delivery, at the request of the purchaser, be delayed for more than two weeks from the agreed date of delivery or in the event that no delivery date was agreed, following our indication of readiness for shipment, we shall be entitled to levy storage costs at a monthly flat rate of 0.5% of the price of the goods to be delivered, although only to a maximum of 5%. The purchaser remains entitled to prove that we have suffered no damages or substantially lesser damages. It remains our entitlement to prove that we have suffered greater damages.

d) In so far as the purchaser requests insurance by us or the supplying plant this will be charged to the purchaser. In such cases we act purely as an intermediary to the exclusion of all liability on our part.

e)Goods declared ready for dispatch shall be called off within 5 days. Otherwise, we are entitled to ship the goods at our own discretion and charge the costs to the purchaser. Articles 3 b) and 3 c) apply in this case accordingly.

4. Legal Guarantees, Notification of Defects and Rights of Recourse

a) The purchaser’s legal guarantees require that he has carried out his inspection and notification duties in accordance with § 377 HGB (Article 377, German Commercial Code).

 

b)Claims for faults come under the statute of limitations after 12 months. The period begins with delivery of the goods to the purchaser or in the case of ex-works agreements, with the collection of the goods by the purchaser.

The statutory limitation period applies in respect of claims for damages, in cases of intent or gross negligence, and in cases of risk of injury to life, limb and health, due to our intentional or grossly negligent behaviour.

In so far as the law according to Article 438 I N° 2, German Civil Code (Buildings & Objects for buildings), Article 479 I German Civil Code (Recourse Claims) and Article 634a I German Civil Code (Construction Defects) imposes longer mandatory periods, these apply.

Our prior consent is required before any goods are returned.

 

c) Should the delivered goods, notwithstanding all due care and attention, exhibit a fault or defect, present at the time of transfer of risk, we will, subject to the punctual notification of faults, repair or replace. We shall at all times be granted opportunity for rectification performance within a reasonable period of time.

If following an inspection instigated by the purchaser, no fault or defect can be determined, the purchaser shall be required to reimburse the costs. In this regard we charge a fixed rate of 45 Euro per hour commenced, plus 0.51 Euro per Kilometre inward and outward journey. The purchaser remains entitled to prove that we have suffered no damages or substantially lesser damages.

Recourse claims shall remain, without restriction, unaffected, by the above provision.

 

d) If our repair or replacement fails to remedy the defects, the purchaser shall be entitled to, notwithstanding claims for damages, either reduce the purchase price or rescind the contract. Rescindment of the contract or reduction of the purchase price shall only be permissible after 8 weeks following receipt of a justified notification of fault or defect. 

e) Claims for defects are excluded by insignificant divergence from the agreed appearance and workmanship, by insignificant restrictions in usability, with natural wear and tear, as with damages following the transfer of risk caused through negligent handling or storage, excessive operational demands, unsuitable equipment, poor construction, unsuitable building land, or a consequence of special exterior influences which are not presupposed by the contract. Claims for damages are disqualified by problems caused by unprofessional maintenance or modifications by the purchaser or other third parties.

f) Claims on the part of the purchaser for necessary costs for rectification in particular transport costs, route-related transport costs and the cost of materials are excluded in so far as the expense increase is due to the goods being subsequently transferred to a site other than the purchaser’s plant, unless the transfer complies with the proper and intended use of the goods.

g)Recourse claims on the part of the purchaser against us will only be deemed to apply in so far as the customer has not reached any agreements with his customer which go beyond the statutory claims. Furthermore, as for the scope of the purchaser’s right of recourse against the seller article f) applies accordingly.

h) We assume no guarantee in respect of the durability and quality of workmanship of the supplied goods. Legal guarantees remain unaffected by this.

5. Right of Rescission

a) The purchaser shall be entitled to rescind the contract in case the prospective delivery date is exceeded by eight weeks and then a notice period of two weeks, set by the purchaser, fruitlessly passes. Exceedance of the delivery date with a relatively small partial delivery does not entitle the purchaser to rescind the contract. The following circumstances entitle us to withdraw from the contract

b) Unforeseen technical difficulties relating directly to this type of order which make it impossible or unreasonable to for us or our supplying plants to perform.

c) War, strikes and irregular raw material or energy supply and for all other cases of significant operational disruption or cases of force majeure with us or our suppliers. Notice of rescission shall be given in writing within 14 days of knowledge of the circumstance in question entitling us to withdraw from the purchase. 

6. Payment

a) All invoices shall be due on the agreed due date. Unless agreed otherwise, payment of the purchase price will be made within 21 days following delivery.

b) Financial uncertainties with the purchaser following acceptance of the order entitle us to make delivery dependent upon cash payment or other adequate securities such as bank guarantees. In case of cash-in-advance payment, our discount provisions apply. Agreed discounts do not apply when at the time the discounted payment is to be made, all other invoices have not been cleared.

c) With default of at least two invoices, suspension of payment, the start of out-of-court settlement proceedings or filing of a petition to open insolvency proceedings by the purchaser, all our invoices become due immediately. Agreed deductions such as discounts etc. cease to be applicable.

d) Interest on arrears will be calculated at 9 percentage points above the relevant basic per annum rate and a lump-sum-rate of 40.00 Euro will be levied. The assertion of a possible higher claim for damages from arrears remains unaffected.

e) The purchaser shall have the right to offset payment only if his counter claims have been legally established, acknowledged and are undisputed by us.

f) The purchaser can exercise a right of retention only when his counterclaim is based on the same contractual relationship. In the event of the existence of defects the purchaser has no right of retention unless the delivered goods are obviously defective, or the purchaser obviously has the right to reject acceptance of the work. In such a case the purchaser shall only be entitled to a right of retention as far as the amount retained is in reasonable proportion to the defect and the likely cost of supplementary performance (in particular rectification of the defect). The purchaser shall not be entitled to any claims if the purchaser has not met due payment obligations and the due amount ranges within a reasonable proportion of the value of the defective goods or insufficient service.

7. Retention of Title

a) We retain the title of the goods until all due payments from the current business relationship have been received.

b) The purchaser is obliged to treat the goods with due care.

c) The purchaser shall be obliged to grant us access of third parties to the goods, for instance in the event of attachment or seizure and in the event of possible damage to or destruction of the goods must be communicated immediately. The purchaser shall be obliged to communicate immediately a change of ownership of the goods as well as own change of residence.

d) We are entitled, in case of acts contrary to the contractual obligations, in particular in the event of default of payment or in violation of an obligation under sections 7 b) to d) of these provisions rescind the contract and demand the immediate release of the delivered goods. The purchaser has the right to sell on the goods in the normal course of business. He assigns us all accounts receivable in the amount of the invoice which the purchaser accrued as a result of the sale to a third-party. We accept the assignment. Following assignment the purchaser shall be authorised to collect the sum due. We reserve the right to assert and collect the sum due ourselves where the purchaser has not met his payment obligations in a proper manner and/or has fallen into payment arrears. 

e) Any processing or manufacturing processes carried out on the goods by the purchaser shall at all times be in our name and on our behalf. If processing is done with articles not belonging to us, we shall acquire, in the new object, the co-ownership at the ratio of the invoice value of the goods delivered by us to the invoice value of the other processed objects

8. Final Provisions

a) The contract shall be governed by the laws of the Federal Republic of Germany with the exclusion of UN international trade law.

b) Where the purchaser is a registered trader, a juridical person under common law or publicly-owned funds and assets, the place of jurisdiction for all disputes resulting from this contract is exclusively our registered office. The same shall also apply if the purchaser does not have a general place of jurisdiction in Germany or if his place of residence or whereabouts is unknown at the point in time at which the action is filed

c) Should individual conditions of the contract with the purchaser be, or become, invalid, in whole or in part, including these General Terms and Conditions, the validity of the remaining conditions is not prejudiced herewith. The whole, or partly invalid provision, should be replaced by a provision, whose commercial success is as near as possible to the invalid one.

d) In the event of a discrepancy or difference in interpretation between various language versions of this General Terms & Conditions, the German language version shall prevail.

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