Valid as of 18/09/2009
Art. 1 General, Scope of Application
(1) All orders placed with us by a business person (Kaufmann) as defined in Sec. 14 BGB [German Civil Code] shall be, unless agreed otherwise in writing, governed exclusively by the following Terms and Conditions of Sale and Delivery (the “Terms and Condi-tions of Sale”). Our Terms and Conditions of Sale shall also apply to all future transac-tions with the Buyer, insofar as they are of a similar kind to the present transaction, without any further reference to these Terms and Conditions of Sale being necessary.
(2) Except where we have given our express written consent to their application, terms and conditions of sale and delivery of the Buyer or third parties which conflict with or deviate from these Terms and Conditions of Sale shall not apply. These Terms and Condi-tions of Sale shall apply even if, despite having knowledge of terms and conditions of the Buyer which conflict with or deviate from these Terms and Conditions of Sale, we supply ordered goods or services without reservation or making reference to a letter which contains terms and conditions of business of the Buyer or a third party or making reference to such terms and conditions.
Art. 2 Offers and Conclusion of Contract, Scope of *Performance
(1) Our offers are only deemed binding if we confirm them in writing or comply with them by sending the goods and the invoice. Our offers are made, in particular, subject to availability and subject to clerical, calculation and other errors.
(2) Orders or commissions of the Buyer are binding offers. We shall have the right to accept offers within a period of fourteen days from receipt of them by, at our option, either sending a confirmation or unconditionally supplying the goods or service ordered.
(3) The legal relationship between the Buyer and us shall be governed exclusively by a written contract, including these Terms and Conditions of Sale. The contract shall constitute the entire agreement made between the parties concerning the subject matter in question. Oral agreements shall only be binding if confirmed by us in writing. The same shall also apply to all modifications and additions to the contract, including any modifications or additions to these Terms and Conditions of Sale. The use of telefax or email shall be sufficient to satisfy the requirement of the written form.
(4) Advertising statements as well as documents belonging to an offer, in particular illustra-tions, drawings, indications of weights and measures, performance data, technical de-scriptions and data sheets as well as the technical data and descriptions in the respective product information materials or advertising materials are only approximate in nature unless the application for the purpose stipulated in the contract requires exact conformance. They shall be deemed part of the contract only if expressly incorporated into it. Unless expressly agreed otherwise, they shall not constitute any agreed properties or any warranty of properties or durability of the goods to be supplied by us. Guarantees are given by us through express written agreement with the Buyer only.
(5) We reserve the right to supply goods with deviations that are customary in the trade and with other changes to the technical design, concept or form of the delivery items as well as with deviations in the appearance of the delivery items and to make format changes and changes to the scope of delivery during the delivery period provided the items of delivery are not altered material thereby and the changes are not unreasonable for the Buyer. We expressly reserve the right to make reasonable changes as a result of technical progress or changes in legal regulations as well as improvements to the delivery. Samples are for inspection only and are non-binding. All analytical data, including maximum and minimum values, shall be regarded as approximate only, except where special properties are specifically guaranteed. Regarding quantities, “approx.” or “ca.” means, at our discretion, ± 10%. No part-quantities shall be removed from original containers.
(6) We expressly reserve title and/or copyright to all offers and cost estimates submitted by us as well as to all drawings, illustrations, calculations, brochures, catalogues, models, tools and other materials and auxiliary materials made available by us to the Buyer. Except with our express written consent, the Buyer may not make the aforesaid items either as such or the content thereof available to any third party, publish them, or use or reproduce them himself or have them used or reproduced by a third party. The Buyer shall, at our request, return such items to us completely and destroy any copies made of them if they are no longer needed by the Buyer in the ordinary course of busi-ness or if negotiations do not lead to the conclusion of a contract.
Art. 3 Terms of Payment
(1) The prices agreed on conclusion of a contract, and in particular those stated in the order confirmation, shall apply. If a price is not expressly stipulated, the prices as per our price list in force at the time of conclusion of contract shall apply. All prices are quoted in EURO. Unless indicated otherwise, prices are quoted exclusive of packaging, ship-ping, freight, carriage and insurance costs, custom duties and value added tax. All these costs and duties are born by the Buyer. Value added tax will be added in the in-voice as a separate item at the rate valid on the day of invoicing.
(2) The prices apply to the scope of goods and services stated in the order confirmation. Any additional or special goods or services as well as changes to customs duties or taxes after the conclusion of contract shall be invoiced additionally to the Buyer. Unless indicated otherwise, we agree to be bound by the prices stated in our offers for a period of 30 days from the date of the offer.
(3) We reserve the right to adjust our prices by a reasonable amount if, after the conclusion of a contract, external cost cuts or cost increases occur, especially as a result of the conclusion of collective wage agreements or changes to market prices, which affect the total costs of the goods. We shall, on request, evidence the same to the Buyer, indicating the individual cost components and their significance for the total price.
(4) Cash discounts shall require special written agreement. In the case of any delay in payment, the statutory provisions shall apply.
(5) Payment shall be made within 30 days in accordance with the payment terms granted by us. We shall accept discountable bills and cheques only by special agreement and only on account of payment. Discounting costs shall be borne by the Buyer.
(6) We reserve the right, in deviation from any agreements made, to make outstanding deliveries only in return for payment in advance or the provision of security and to declare the total outstanding debts of the Buyer due and payable immediately if the Buyer fails to pay due invoices or exceeds a period or deadline agreed for payment or if, after conclusion of the contract, circumstances become known to us which cast doubts on the solvency or creditworthiness of the Buyer and could jeopardise the payment of our outstanding claims. This shall be the case in particular if the Buyer ceases making payments, if cheques issued by the Buyer cannot be cashed, if bills issued by the Buyer are not paid by the Buyer, if insolvency proceedings are opened against the Buyer or if a petition for the opening of insolvency proceedings is filed but not opened due to lack of funds.
(7) The Buyer shall only have a right to set-off counterclaims or to withhold payments if his/her counterclaim is undisputed or has been finally and absolutely established at law.
(8) In the event of a period or date for payment being exceeded and the Buyer being in default with payment, interest shall be charged on the amounts due at a rate of eight percentage points above the base interest rate in force at the time (Sec. 247 BGB).
Art. 4 Delivery / Passing of Risk
(1) Unless agreed otherwise between us and the Buyer in writing, delivery shall be effected ex works or ex warehouse, and the items of delivery shall be collected by the Buyer at his own risk and expense. The risk of accidental loss and accidental deterioration shall pass to the Buyer on receipt by him of notice of readiness for collection or otherwise on handover of the goods (whereby the start of the loading procedure shall be decisive) into the custody of the freight forwarder, carrier or other third party ap-pointed to handle the transport. The Buyer shall also bear the risk of accidental loss or accidental deterioration of the items of delivery where part-deliveries are effected or where we have, as an exception, also undertaken to perform other duties or services, e.g. to assume the costs of shipment or to perform transport to the Buyer, except where delivery is effected through our own vehicles or our own means of transport. Should shipment or handover be delayed due to reasons attributable to the Buyer, the risk shall pass to the Buyer from the day on which we are ready to dispatch and have notified the Buyer accordingly.
(2) Where shipment has been agreed, we shall be free, in the absence of any special written agreement to the contrary, to choose the mode of transport at our discretion, with the goods being shipped at the Buyer’s expense.
(3) Where shipment or collection of the items of delivery is delayed for reasons attributable to the Buyer, the costs arising as a result of the delay (e.g. storage costs) shall be charged to the Buyer. Where we undertake storage, the costs therefore shall amount to 0.25% of the invoice amount of the items of delivery stored for each full week. This shall be without prejudice to the right to prove and claim higher or lower storage costs.
(4) The consignment shall only be insured by us against theft, breakage, transport, fire and water damage or other insurable risks on the express request of the Buyer and at the Buyer’s expense.
(5) Agreed periods or dates for the supply and delivery of goods and services always shall be deemed approximate only, unless fixed periods or dates have been expressly agreed in writing. Where shipment has been agreed, delivery periods and delivery dates refer to the time of handover into the custody of the freight forwarder, carrier or other third party appointed to effect transport.
(6) We may, without prejudice to our rights arising from delay on the part of the Buyer, demand that the Buyer agrees to an extension of delivery periods or dates for the sup-ply of goods and services at least by the period of time during which the Buyer fails to meet his contractual obligations towards us.
(7) We shall be deemed to be in delay only on expiry of an adequate grace period set to us by the Buyer. In the event of force majeure or other unusual circumstances which were not foreseeable by us at the time of conclusion of contract and are not attributable to us (e.g. disruption of business operations as a result of fire, water and similar circum-stances, earthquake, failure of production facilities and machinery, late delivery or non-delivery by suppliers as well as interruption of business operations due to shortage of raw materials, energy or manpower, strikes, lawful lockouts, difficulties in the procure-ment of transport, disruptions to traffic, terrorist attacks, sabotage, embargoes, intervention by official bodies), we shall have the right – insofar as we are prevented through circumstances of the aforesaid kind and without any fault on our part from fulfilling our duties in a timely manner – to defer supply of goods or services for the duration of the impediment plus a reasonable restarting period. Should supply of goods or services be delayed as aforesaid by a period of more than four weeks, both the Buyer and we shall have the right, to the exclusion of all claims for damages, to withdraw from the contract in respect of the quantity affected by the impediment to delivery.
(8) We shall have the right, provided this is reasonable for the Buyer, to supply part-deliveries and part-services within the agreed delivery periods.
(9) If we should fall into delay with the supply of goods or services or if, for any reason whatsoever, it should become impossible for us to supply such, our liability shall be limited to damages as set forth in Art. 6 of these Terms and Conditions of Sale.
Art. 5 Buyer’s Rights in Case of Defects
(1) The Buyer shall notify us without undue delay, at the latest, however, within a period of seven working days from receipt of the goods, in writing, of any evident defects as to quality, delivery errors and quantity variances, stating the order data and the invoice and dispatch numbers. Hidden defects shall be notified to us in writing within a period of seven working days from their discovery. A notice of defects made later than afore-said or not in a proper way shall cause the Buyer to forfeit the rights to which he is enti-tled in the case of defects, except where a defect has been fraudulently concealed by us.
(2) Where goods supplied by us are defective, we shall at our election (which we shall make in due time) either repair the defect or supply defect-free goods (remedy). In the case of repair, we shall bear all the expenses incurred for the purpose of repairing the defect, in particular transport, travel, labour and material costs, except insofar as these are increased by the item concerned having been taken by the Buyer to a place other than the place of performance.
(3) If we are not prepared or not able to effect remedy, and in particular if remedy should be unreasonably delayed for reasons attributable to us or should fail for any other rea-son or if the kind of remedy to which the Buyer is entitled would be unreasonable for the Buyer, he shall have the right, at his option, to withdraw from the contract or to claim a reduction in the purchase price. Unless indicated otherwise due to the nature of the item or other circumstances involved, repair shall be deemed to have failed after the third attempt. In the event of withdrawal from the contract by the Buyer, the delivered goods must be returned to us at the place of performance as stated in Art. 11 (2). Should the goods be located at a place other than the place of performance (current location), they must be transported by the Buyer from the current location to the place of performance at the Buyer’s own expense and risk.
(4) Where the defect is due to our fault, the Buyer shall be entitled to claim damages solely under the conditions set forth in Art. 6 hereof.
(5) Even if a notice of defects is justified, the Buyer may not plead non-performance and shall continue to have a duty to pay the purchase price on the due date, except where a claim is undisputed or has been finally and absolutely established at law.
Art. 6 Liability
(1) We may only be held liable for damage or unnecessary expenses, on any legal grounds whatsoever, if the damage or unnecessary expenses
a) has/have been caused by us or one of our vicarious agents through culpable breach of a material contractual duty, i.e. a duty without the performance of which the contract could not be properly fulfilled or in the performance of which the Buyer regularly trusts or is entitled to trust, or
b) is/are due to gross negligence or a wilful act on our part or on the part of one of our vicarious agents.
(2) In deviation from Art. 6 (1) a), we shall only be held liable for damage or unnecessary expenses arising from advice and/or information for which no additional remuneration is payable in the case of a duty has been breached with wilful intent or gross negligence, except where such breach of duty constitutes a material defect as defined in Sec. 434BGB in the goods supplied by us.
(3) Where we are liable pursuant to Art. 6 (1) a) for the breach of a material contractual duty without gross negligence or a wilful act, our duty to compensate shall be limited to the foreseeable and typically occurring loss or damage. In this case, we shall not be held liable for unforeseeable, not typically occurring loss of profit of the Buyer, nor for unforeseeable indirect consequential damage. The limitation of liability pursuant to Art. 6 (1) and (2) shall likewise apply to loss or damage caused by gross negligence or wilful act on the part of our employees or representatives except unless they are directors or senior employees of our enterprise.
(4) The foregoing limitations of liability pursuant to Art. 6 (1) to (3) shall not apply where our liability is mandatory under the provisions of the German Product Liability Act [“Produkthaftungsgesetz”] or where claims are made against us on grounds of damage or injury to life, limb, or health. Where goods supplied by us lack a guaranteed prop-erty, we shall only be held liable for loss or damage the avoidance of which was the ob-ject of the guarantee.
(5) All other liability for damages than that provided for in Art. 6 (1) to (4) is excluded, regardless of the legal nature of the claim. This applies in particular to claims for damages on grounds of culpa in contrahendo, Art. 311 (2) and (3)BGB, (positive) breach of obligation pursuant to Art. 280 BGB or tortious claims pursuant to Art. 823 BGB.
(6) Where our liability for damages is excluded or limited pursuant to Art. 6 (1) to (4), the same shall also apply to the personal obligation to compensate on the part of our employees, representatives and vicarious agents.
Art. 7 Limitation Period for Claims
(1) Unless provided otherwise below, claims of the Buyer arising from defects in goods supplied by us or from improperly provided services – including claims for damages and claims for refund of unnecessary expenses – shall lapse one year from the start of the statutory limitation periods.
(2) Where the Buyer is a business person and he or another buyer in the supply chain fulfils, as business person, claims of a consumer for defects to articles newly produced by us, which articles were also supplied to the consumer as new, claims against us pursu-ant to Sec. 437 and 478 (2) BGB shall lapse not earlier than two months after the time at which the Buyer or another buyer within the supply chain has, as a business person, fulfilled the claims of the consumer, provided the Buyer could not have successfully in-voked a plea of the statute of limitations against his customer/contract partner. The claims of the Buyer against us shall in all cases lapse insofar as the claims of the Buyer’s customer/contract partner arising from defects to the goods supplied by us to the Buyer have lapsed, or not later than 5 years from the time at which we supplied the goods to our Buyer.
(3) In the case of goods newly produced and supplied by us, which have been used in ac-cordance with their customary purpose for a building structure and have caused the building structure to be defective, the Buyer’s claims shall lapse 5 years from the start of the statutory limitation period.
(4) Where we have provided improper advice and/or information, such advice or information not being subject to any separate remuneration, without having supplied goods in connection with the advice or information or without the improper advice or information constituting a defect as to quality as defined in Sec. 434 BGB to the goods supplied by us, all claims based thereon shall lapse one year from the start of the statutory limita-tion period. Claims of the Buyer against us arising from the breach of contractual, precontractual or statutory duties that do not constitute any defect as to quality as defined in Sec. 434 BGB to goods to be supplied or already supplied by us shall likewise lapse one year from the start of the statutory limitation period. Insofar as a breach of duty as aforesaid constitutes a defect as to quality as defined in Sec. 434 BGB to goods supplied by us in connection with the advice or information, the provisions of Art. 7 (1), (2), (3) and (5) shall apply with regard to limitation of the claims based on such breach.
(5) The foregoing provisions shall not apply to the limitation of claims arising from damage or injury to life, limb or health nor to the limitation of claims made under the German Product Liability Act nor to the limitation of claims brought on the basis of defects in title of the goods supplied by us, if the defect is caused by a right in rem of a third party which would allow such third party to bring a claim for repossession of the goods delivered by us. Nor shall they apply to the limitation of claims of the Buyer existing on grounds that we have fraudulently concealed defects of the items supplied by us or that we have breach one of our duties wilfully or through gross negligence. In the cases stipulated in this Art. 7 (5), the statutory limitation periods shall apply with regard to limi-tation of the claims concerned.
Art. 8 Reservation of Title
(1) The delivered goods shall remain our property until payment in full of the purchase price and all our other present or future claims against the Buyer arising from the business relationship between us. The placing of the purchase price claim against the Buyer on a current account and recognition of the balance shall have no effect on the reservation of title.
(2) The Buyer shall have the duty to treat the item of sale with care; he shall have the duty, in particular, to insure it sufficiently at his own expense at new value against loss and damage and destruction, e.g. against fire and water damage and theft. The Buyer hereby already assigns any claims he may have under the insurance policies to us. We accept this assignment.
(3) The Buyer may neither give the goods that are subject to our reservation of title in pledge nor assign them by way of security. He does, however, have the right, in accordance with the provisions set forth below, to resell the delivered goods in the ordinary course of business. The aforesaid right shall, however, not exist if the Buyer assigns the claim against his contract partner arising from the resale of the goods in advance to a third party or gives it in pledge or agrees a covenant against assignment with his contract partner.
(4) As security for the fulfilment of all our claims as set forth in Art. 8 (1), the Buyer hereby already assigns to us all claims, including future and conditional ones, arising from the resale of the goods supplied by us, together with all accessory rights, in the amount of the value of the delivered goods and ranking in priority before all other of his claims. We hereby accept this assignment.
(5) For as long as and insofar as the Buyer fulfils his payment obligations towards us, he shall be authorised to collect the claims assigned to us against his customers in the ordinary course of business. He is, however, not entitled to agree a current account relationship or a covenant against assignment with his customers in respect of such claims or to assign the claims to third parties or to give them in pledge. If, contrary to Sentence 2, a current account relationship exists between the Buyer and the purchasers of the goods which are subject to our reservation of title, the claim assigned in advance shall also apply to the recognised balance and, in the event of insolvency of the pur-chaser, to the then existing balance.
(6) The Buyer shall, in response to our demand, prove details of each of his assigned claims and notify his debtors of the assignment, calling on them to make payment to us in an amount equivalent to that of our claims against the Buyer. We also have the right to inform the Buyer’s debtors of the assignment and to collect the claims. We will, however, not make use of these rights for as long as the Buyer fulfils his payment obligations properly and punctually, no petition is filed for the opening of insolvency proceedings against the Buyer and the Buyer does not cease making payments. Should any of the aforesaid events occur, however, we may demand that the Buyer informs us of the assigned claims and the debtors, provides us with all information needed for collecting the claims, and furnishes the relevant documents.
(7) The Buyer shall inform us immediately in writing of any attachment or other intervention by third parties so as to enable us to bring legal actions pursuant to Art. 771 ZPO [Code of Civil Procedure].
(8) Any processing or refashioning of the goods supplied by us subject to our reservation of title shall in all cases be deemed done by the Buyer on our behalf, without this giving rise to any obligations on our part. If the goods supplied by us subject to our reservation of title are processed with other items not belonging to us, we shall have co-title to the new item so created in the same proportion as that between the value of the goods supplied by us (final invoice amount, including VAT) and the value of the other goods processed at the time of processing. In all other respects, the same shall apply to the item created through processing as to the item of sale supplied subject to our reservation of title. If the goods supplied by us subject to our reservation of title are inseparably combined with other items not belonging to us, we shall have co-title to the new item so created in the same proportion as that between the value of the goods supplied by us (final invoice amount, including VAT) and the value of the other goods mixed or combined at the time of mixing or combination. If mixing or combination is done in such manner that the Buyer’s item must be seen as the principal item, it is agreed that the Buyer shall transfer a proportionate share of co-title to us. The Buyer shall preserve the item to which we have sole or co-title on our behalf. The Buyer has the right to dispose of the products newly created through processing or refashioning or combination or mixing in the ordinary course of business for as long as he fulfils his obligations towards us arising from the business relationship in a punctual manner. The Buyer, however, shall not be entitled under no circumstances to resell or otherwise commercialise the goods with the agreement of a covenant against assignment with his buyer or to give the new products in pledge or to assign them by way of security. The Buyer hereby already assigns to us, in the scope of our share of title to the sold goods, his claims arising from the sale of the new products as security. If the Buyer combines or mixes the delivered goods with a principal item, he hereby already assigns his claims against the third party up to the amount of the value of our goods to us. We hereby ac-cept these assignments.
(9) We hereby undertake, at the Buyer’s request, to release to the Buyer the security to which we are entitled to the extent that the realisable value of the security held by us exceeds the value of our claims against the Buyer by more than 10%; the choice of the securities to be released shall lie with us.
(10) In the case of any breach of contract by the Buyer, in particular in the case of any delay in payment with a value of more than 10% of the invoice amount for a not inconsiderable period of time, we shall have the right, without prejudice to any other claims (for damages) we may have, to withdraw from the contract and to demand the return of goods already supplied by us. After repossession of goods previously supplied by us, we shall have the right to dispose of the same. The sale proceeds shall, after the deduction of reasonable costs of sale, be credited towards the amounts owed to us by the Buyer.
Art. 9 Packing
Unless agreed otherwise, all goods shall be supplied in the packing of our choice. Our packing may only be reused for trade if our corporate name, logo, and trademark are rendered illegible.
Art. 10 Protection of Trademark
If goods supplied by us and bearing our trademark are processed, the use of our trademark in connection with the goods so produced shall only be permitted with our express written consent. This shall apply to all phases of processing.
Art. 11 Final Provisions
(1) This contract and the entirety of the business relationship between the Buyer and us shall be governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) which shall not apply.
(2) Where the Buyer is a business person, a legal entity under public law or a separate as-set fund under public law, the place of performance and exclusive legal venue for all disputes arising from this contract shall be Warstein, Germany, unless mandatory statutory regulations require otherwise. However, we also reserve the right to bring
legal action against the Buyer at the courts having jurisdiction for his domicile/seat.
(3) We store data of the Buyer within the context of our mutual business relations in accordance with the provisions of the German Federal Data Protection Law (BDSG).
(4) Should any part of any of these provisions be or become invalid or impracticable or should any gaps be found in them, this shall have no effect on the validity of the other provisions. Any such invalid or impracticable or incomplete provision shall be replaced by one that is complete and admissible and most nearly corresponds to what the
parties would have agreed had they recognised the invalidity, impracticality, or incompleteness.