Standard Terms and Conditions for Sales, Deliveries and Payment

 1.            Scope of Terms

1.1
Our deliveries, performances and offers are exclusively based on these Standard Terms and Conditions. They consequently also apply to our (the Seller's) future business relations even if the applicability of the Standard Terms and Conditions has not explicitly agreed again. These Standard Terms and Conditions are deemed to be accepted at the latest with the acceptance of the delivery / performances. We hereby object against contradicting statements of the Customer and any referral to his own Standard Terms and Purchase Conditions.

1.2
Deviations from these Terms and Conditions shall only be effective if the Seller has confirmed them explicitly in writing.

1.3
These Standard Terms and Conditions shall apply for our business relationship with businesses, legal entities in the public domain and special funds of the public domain in the meaning of § 310 subsec. 1 of the German Civil Code.

 

2.            Offer and Agreement

2.1         
If an order can be qualified as offer according to Section 145 of the German Civil Code, we have the right to accept this offer within four weeks.

2.2.1
We reserve ownership and intellectual property rights to all pictures, drawings, calculations, data, samples and other material. These materials must not be made available to third parties. This applies in particular to such information, in particular written documentation, which has been marked as confidential; before handover to third parties the explicit written consent of Seller is required.

2.2.2
If we deliver upon specification as e.g. drawings, data, samples and/or other specifications of Customer, Customer is liable for the correctness and completeness of such specification. We have the right to charge such costs to Customer which are caused in the processing of the order because specification of Customer turn out to be incorrect and/or incomplete.

2.3
Drawings, pictures, measures, weight and other data shall only be binding if this has been agreed explicitly in writing. Such specification must not be regarded as guarantees as to grade and quality.

 

3.            Time of Delivery and Performance, Default

3.1.1
Precondition for the agreed time of delivery is the clarification of all technical issues.

3.1.2
Seller reserves the right to make technical changes and product modifications based on ongoing development as far as this does not cause any inconveniences for the Customer.

3.2
The dates and deadlines given by Seller are non-binding if nothing else has been explicitly agreed in writing. The Seller in principal does not accept the risk of for own purchases.

3.3
Seller has the right to delay his delivery and performance in case of delivery and performance delays based on force majeure and because of acts which make Seller’s delivery significantly more difficult or impossible (e.g. strike, lockout, etc.). The acceptable delay is the duration of the obstruction plus an acceptable starting period. This applies mutatis mutandis if the aforementioned obstructions occur at the supplier of Seller or of the sub-suppliers.

3.4
Correct and timely supply is reserved.

3.5
If Seller has not fulfilled due performance in the agreed way, Customer does not have the right to withdraw from the Agreement and demand damages instead of the performance and reimbursement of futile expenditure if the breach of Seller’s responsibilities is immaterial.

3.6
Seller shall come only in default upon demand for delivery, unless the law or the contract state differently. Demand letters and deadlines of Customer require written form.

3.7.
Seller is only obliged to observe his liability for delivery if Customer has timely and properly fulfilled his own obligations. We reserve the right to the defence of lack of performance. Seller has the right to partial delivery and partial performance at any time.

3.8
If Seller does not make a due performance or does not perform as owed, Customer may withdraw from the agreement and may claim damages instead of performance or futile expenditure under the precondition that Seller is in negligent breach of contract and subject to the further preconditions as laid down in the following clauses. It is a further precondition that Seller has given an appropriate deadline for the performance or for a later performance and that this deadline has expired fruitlessly.

3.9
Seller is obliged to link the deadline for later performance according to above clause 3.8 with the explicit statement that he will refuse delivery after fruitless expiration of the deadline for later performance and that he will pursue his rights according to clause 3.8 against Seller.

3.10
If Seller has already partially performed, Customer may only claim damages instead of full performance if this is justified by his interest in full performance. Withdrawing from the agreement is only possible if Seller can prove that he is not interested in partial delivery.

3.11
If Seller is in default based on reasons which he has to justify, he shall not be liable for damages in case of simple negligence. This limitation of liability does not apply if Seller is in default because of a negligent breach of a material contractual obligation. In this case the liability of Seller is limited to those damages which are typical for this contract and which are foreseeable. In case of an intended breach of contract for which the Seller is responsible, Seller shall be liable according to the statutory provisions. Further reaching claims of Customer are excluded in cases of delayed delivery also after expiration of a deadline for later performance as set to Seller. This shall not apply in cases, in which there is a strict liability for intent, gross negligence and for personal injury; a change of the burden of prove to the disadvantage of Customer shall not be affected hereby.

 3.12
In case of default of acceptance by Customer or in case of breach of other contribution obligations of Customer, Seller has the right to pursue his legal rights. The danger of accidental perishing of the goods and/or an accidental deterioration of the delivered goods shifts to Customer at the latest if he gets under default of acceptance.

 

4.            Installation

4.1
Installation principally is not included in our prices and offers. Something else applies if our order confirmation explicitly also includes installation works.

4.2
Machinery and auxiliary services as water and energy have to be made available to Seller at the place of installation in time and free of charge in the necessary extent. Upon request of Seller lockable and guarded rooms have to be made available to him free of charge in which he can store the purchased good as well as machinery, tools etc. of the installing personal in order to protect these items against theft and damage. Customer has to obtain the necessary permits for the installation works before the installation begins and has to prove this to Seller at Seller’s request. If one or several of the aforementioned preconditions are not fulfilled and the installation works are therefore not reasonable for Seller, Seller may set an appropriate deadline. Upon fruitless expiration of this deadline, Seller has the right to refuse the installation without prejudice to his rights out of the delivery.

4.3
Installation costs are charged to Customer on the basis of the performed working hours plus traffic costs, taxes and fees unless something different has been explicitly agreed. 

 

5.            Transfer of Risk, Packaging

5.1
Unless something different has been agreed, delivery ex factory is agreed. The risk passes to Customer as soon as the consignment has been handed over to the person executing the shipping or has been left the storage of Seller for shipping; this also applies if Seller handles the shipping with his own personal.

5.2
If the shipping becomes impossible without negligence of Seller, the risk passes to Customer with the statement of readiness for shipping.

5.3
If desired by Customer, Seller will cover the delivery with a shipping insurance, the costs caused thereby shall be born by Customer.

5.4
The shipping and all other packaging according to the packing material ordinance 
will not be taken back; this excludes shipping installations which can be used repeatedly like pallets, grid boxes or other multiple usable transport installations. Customer is obliged to take care of the disposal of the one-way-packaging for his own costs. The multiple usable transport installations are only given to Customer on loan; Customer is liable for their return in orderly condition, e.g. empty and undamaged; in case of soiling or damaging of the transport installations Customer shall be liable for the repair costs respectively he is liable to pay damages as far as a repair is impossible.

 

6.            Prices and Payment

6.1
If not stated differently in the order confirmation, our prices are ex factory excluding packaging, packaging will be charged separately. We reserve the right to change our prices accordingly if after completion of the agreement cost reductions or cost increases in particular because of collective bargaining agreements or increase of supply material occur. This will be proven to Customer upon demand.

6.2
Value added tax is not included in our prices; VAT will be charged in the statutory amount as applicable at the day of invoicing and as shown in the invoice. The deduction of a discount requires an explicit written agreement.

6.3
The invoiced amount is due without reduction within thirty days from the invoice date for payment, unless something different has been explicitly agreed.

6.4
If Customer is in default, Seller has the right to exercise his rights under Section 288 of the German Civil Code.

6.5
Customer has only the right to set off if his counterclaims have become res judicata, are uncontested or have been accepted by Seller. Furthermore, he has only a right to hold back if his counterclaims are based on the same contractual relationship.

6.6
If Seller knows facts which question the creditworthiness of Customer, Seller has the right to demand payment on account or security without prejudice to his further legal rights.

6.7
Cheques or bills of exchange are only deemed as payment as soon as they have been paid. Seller reserves the right to accept them. Any discount fees or bank fees have to be born by Customer.

6.8
The sold goods are delivered on the basis of these Standard Terms and Conditions under retention of title. If Seller agrees with Customer on payment of the purchase price on the basis of the cheque / bill of exchange process, the retention of title also extends to the payment of the bill of exchange by the Customer and does not expire after the received cheque is credited at Seller.

 

7.            Warranty

7.1
The warranty claims of Customer require that he fulfils his inspection and notification obligations under Section 377 of the German Commercial Code. This includes in particular that he checks at the take over of the goods in the factory or immediately after receipt the delivery amount, condition and undamaged receipt of the delivery. If defects are noted, these have to be notified to the Seller immediately in writing.

7.2
Statutory rights for recourse of Customer against Seller only exist if Customer has not agreed with his customer on claims in case of defects which exceed the statutory claims.

 7.3.1
If a defect of the delivered good exists for which Seller is liable, Customer has always at first instance to grant the opportunity for a new delivery within an appropriate deadline. Seller has the right to choose between the repair of the defect or delivery of a replacement product.

7.3.2
If a new delivery is without success, Customer may withdraw from the agreement – irrelevant of any damage claims – or reduce the purchase price. The claims of Customer because of expenditure related to the new delivery, in particular transport, shipping. labour and materials costs are excluded, if these expenditure has increased because the delivered goods were brought later to a different place than the place of delivery; this does not apply if the transfer to the other place is covered by the intended use.

7.4.1
Warranty claims do not exist in case of immaterial deviation from an agreed quality, in case of immaterial limitation of the intended use, in case of natural ware and tare or in case of damages which are caused after the transfer of risk by incorrect or negligent treatment, excessive usage, inappropriate means of operation and/or because of special extern influences and/or which do not fall within the intended use.

7.4.2
The liability of Seller for defects is not applicable if operation and service instructions of Seller are not observed, non-admissible changes have been made to the products, parts have been exchanged or means of operation have been used, which do not fulfil the original specifications. Something else only applies if the warranty case is not based in a provable way on one of the aforementioned exclusions.

7.4.3
Customer does not have warranty claims based on qualities and features which have been delivered based on the expressive wish of the Customer and where we expressed our concerns as to problems in its function.

7.5
Warranty claims are time barred after 12 months; this delay begins with the transfer of risk. The aforementioned clause does not apply as far as statutory laws in Sections 438 para. 1 no. 2 (buildings and goods for buildings), 479 (claims for recourse) and 634 a (works performed on a building and planning and supervising work regarding a building) of the German Civil Code provide for a longer delay. In case of fraudulent intent the statutory provisions apply.

7.6.1
To the extent nothing else is provided for hereinafter, any further reaching claims of Customer - irrelevant on which cause they are based – are excluded. Seller is not liable for the damages which have not occurred on the delivered good itself, in particular Seller is not liable for lost profit and other financial loss of Customer.

7.6.2
To the extent Seller is negligently in breach of a major contractual obligation or an obligation important for the contract, Seller’s obligation to pay damages is limited to the cover of his product liability insurance; to the extent the insurance does not grant cover Seller is obliged to stand in himself. Seller accepts to grant Customer insight into his insurance policy. Seller undertakes to keep up the insurance until the end of the warranty period according to the terms of this clause.

7.6.3
The above exclusion from liability does not apply if the cause for the damages is based on intent or gross negligence furthermore they do not apply in cases of person injury and damages to the health as well as in cases in which Customer claims damages based on a guarantee issued by Seller stating a certain quality, unless, the purpose of the quality guarantee only covers that the delivery is in line with contractual obligations, but not the risk of consequential damages. This provision does not include a change of the burden of prove to the disadvantage of Customer.

 

8.            Special Provisions for Service and Works Agreements

8.1
In case of notice given by the Customer we have the right to demand the agreed remuneration reduced by the amount which we have saved based on the termination of the agreement and what we earn by alternative use of our employees or purposefully refrain from earning.

8.2
Each party may give notice to the agreement based on an important reason without observing a notice period if the other party violates against an important provision of the agreement and does not provide for relief immediately after receiving a written demand to do so. We have the further right to give immediate notice if the Customer is not fulfilling properly its obligation to cooperate and a deadline set has expired without result.

8.3
If we set the cause for an immediate notice issued by the Customer, the Customer is still liable for payment with respect to the benefit which he received through our performance compared to the benefit based on the contractually agreed performance. If partial acceptance has been made, the accepted part of the performance shall not be considered in any reduction of the payment.

8.4
If the Customer gave the reason for the notice issued by us, the same consequences shall apply as set out in section 8.1 for notice given by the customer. However, we reserve the right to make further claims.

8.5
Notice requires in every case the written form.

8.6
In case of service agreements we do not owe any success with respect to our contractual performance.

8.7
The warranty in case of works agreements follows the provisions in sections 7.2 through 7.5 accordingly.

 

9.            General Liability

9.1
A liability for damages exceeding the provisions provided in these Standard Terms and Conditions is excluded irrelevant of the nature of the underline claim, in particular because of breach of contract and tort.

9.2
We shall be liable for damages caused on purpose or by gross negligence irrelevant of the legal basis of such claim. In case of regular negligence our liability is limited to the violation of important contractual obligations which shall be limited to the typically foreseeable damages unless the provision in section 9.3 apply.

 

 

9.3
The exclusion of liability as stated above does not apply for claims based on the statute on product liability and in case of damages to life, body and health.

9.4
As far as our liability is excluded or limited, this also applies to the personal liability of employees, assistants, agents and representatives of Seller.

 

10.          Retention of title

10.1
The delivered goods remain in the ownership of Seller until full payment of all claims resulting from the business relation between Seller and Buyer. Including individual claims into an ongoing account as well as the acceptance of an account shall have no effect on the retention of title. Payment is only deemed to be affected at the time when value is received by Seller.

10.2
In case of breach of contract by Buyer, in particular in case of delay of payment, Seller has the right to call back the purchased goods. Such call-back-action by Seller is not deemed to be a withdrawal from the agreement unless Seller has stated this explicitly in writing.

10.3
The seizure of the purchased goods by Seller is always deemed to be a withdrawal from the agreement. Seller has the right to realize the value of the purchased goods after calling it back. The realization proceeds are set off against the liabilities of Buyer minus due cost charges.

10.4
Seller is responsible to treat the purchased goods properly; in particular he is liable to sufficiently insure the purchased goods for his own costs against fire, water and theft for the good’s new value. If service and inspection work is necessary, Buyer has to undertake those for his own costs.

10.5
In case of seizure or other actions of third parties Seller has to be informed immediately in writing so that he can file an action according to Section 771 of the German Civil Procedure Code. If such third party is not in the position to refund to Seller the court and other legal costs of such action according to Section 771 of the German Civil Procedure Code, Buyer shall be liable for the resulting loss.

10.6
Buyer has the right to sell the goods under retention of title in the course of his ordinary business activities; however, Buyer already now assigns to Seller all claims in the amount of the final invoice value (including value added tax) issued by Seller which is resulting from his sale to his Buyer or third parties, irrelevant of the fact, whether the purchased goods have been sold on with or without processing. Seller accepts this assignment. If the assigned claim against the Buyer of the goods under retention of title is subject to an ongoing account (account current), this assignment also covers the accepted balance of account as well as in case of insolvency of Buyer the actual “causal” balance Buyer remains authorized to collect this claim also after the assignment. The right of Seller to collect this claim himself remains untouched. However, Seller shall not collect this claim as long as Buyer fulfils his payment obligations resulting from the collected proceeds, he is not in default and in particular no filings for the opening of insolvency proceedings have been made or suspensions of payments have occurred. However, if this is the case Seller may ask Buyer to name to him the assigned claim and the debtor, to give him all necessary information for collection, to hand over the applicable documentation and to inform the debtor (third party) out the assignment.

10.7
The processing or reconstruction of the goods under retention of title by Buyer is deemed to be done always for Seller. If the goods under retention of title are processed with other items which are not owned by Seller, Seller always receives shared ownership to the new item pro rata to the value of the goods under retention of title (final invoice amount including value added tax) and the other processed items at the time of the processing. The provisions applicable to the goods delivered under retention of title also apply to the items which have been created by the processing.

10.8
If the goods under retention of title are mixed with other goods not owned by Seller and cannot be separated again, Seller shall receive shared ownership to the new goods pro rata to the value of the goods under retention of title (final invoice amount including value added tax) and the other mixed items at the time of the mixing. If the mixing is done in a way that the goods of Buyer have to be guarded as main item, it is deemed to be agreed that Buyer insofar transfers to Seller his pro rata shared ownership. Buyer keeps the sole ownership or partial ownership resulting therefrom for Seller.

10.9
Seller agrees to give up securities belonging to him upon request of Buyer if the realizable value of Seller’s securities exceed the claims to be secured by more than 10 %; Seller has the right to choose which securities he will give up.

 

11.          Place of Performance, Venue, Applicable Law

11.1
Place of performance is the seat of our business.

11.2
For all disputes resulting out of the business relationship between business persons, legal entities of the public domain as well as special funds of the public domain including claims out of bills of exchange and cheques the exclusive venue is the Local Court Steinfurt or the District Court in Münster / Germany. The same venue applies if the Customer has no general venue in Germany, moves his domicile or usual place of residence out of Germany or his domicile or usual place of residence is unknown at the time when the complaint is filed.

11.3
All of the legal relationship between Seller and Customer is exclusively subject to the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (Convention of the United Nations stated 11 April 1980 (CISG)) is excluded.

11.4
In multilingual agreements and documents the German version shall be binding in case of doubts on the interpretation.

 Version: November 2004