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| IV.
Prices, Packaging |
| 1.
|
If
nothing has been agreed to the contrary, prices apply ex works,
excluding packaging, freight and duty. To the prices will be
added value-added tax at the statutory rate effective at the
time. Packaging will be charged at cost price and not taken
back. |
| 2. |
The
agreed price is based on current material costs and wages. If
they change before supply of the order, the price will be altered
in proportion to the percentage change of material costs, wages,
energy, etc. The status of production when the changes to material
and wages occur will be taken into consideration. |
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| V.
Terms of Payment |
| 1.
|
If
nothing is agreed to the contrary, payment must be made to us
in cash without any deductions and free to the payment office,
this to be purely net within 30 days of the date of the invoice. |
| 2. |
All
payments must be made to us alone. Payments made to agents without
any written power of collection do not constitute a release
from the payment obligation to us. |
| 3. |
Cheques
and bills are not deemed to be payments until they have been
honoured. Discount charges are payable by the customer. We will
only accept discountable and duly tax-cleared bills in payment
if this has been expressly agreed. No cash discount will be
allowed for payment by bill or in cash against acceptor's bill.
Bills are accepted without any warranty of proper presentation
and protest. |
| 4. |
The
customer is not entitled to withhold the purchase price because
of counter-claims not resulting from this contractual relationship.
Customers only hold an offsetting right if the claim is undisputed,
a decision is imminent or the claim has been confirmed in a
legally final form. |
| 5. |
If
the period for payment is exceeded, we are entitled to charge
interest on arrears without giving notice of default. Such interest
will be equal to customary bank interest on loans but no less
than 5% above the then applicable basic interest rate of the
German Bundesbank. |
| 6. |
Without
any allowance being made for the term of discounted bills, the
purchase price becomes payable immediately:
| a) |
as
soon as any event occurs (e.g. payment default, unfavourable
credit information, compulsory execution measures, etc.)
as a result of which the granting of credit appears dubious,
|
| b) |
if
the customer pledges to third parties our outstanding
receivables or goods to which our reservation of ownership
applies or assigns the same in security. |
If a purchase price becomes payable immediately, we have the
right to refuse to supply any outstanding consignments if they
are not paid in advance, to require protection of our claims,
to rescind the contract after granting a reasonable period of
extension or to claim damages for non-performance. In addition,
we also have the right to prohibit any further sales by the
customer of the goods supplied subject to reservation of ownership
and to repossess such goods. Redemption of goods only constitutes
a rescission of contract if we make an express written statement
to this effect. The costs we incur as a result of redeeming
goods are payable by the customer. The customer cannot request
delivery of goods redeemed without a written statement of rescission
until the purchase price and all costs have been paid. |
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| VI.
Supply Period |
| 1.
|
The
quoted supply periods and dates are without commitment for us,
unless we have provided a written undertaking. In such a case,
they will apply subject to correct and punctual delivery to
us. We do not give any warranty of transportation in due time. |
| 2. |
Supply
periods start on dispatch of the acknowledgement of order but
not before complete clarification of all details of the order
and provision of the documents, licences and approvals for procurement
of which the customer is responsible and not before receipt
of an agreed advance payment or opening of a letter of credit. |
| 3. |
Supply
periods and dates relate to the time of provision or dispatch
ex works or warehouse. They are deemed to have been observed
when readiness for dispatch is reported if goods cannot be dispatched
in due time through no fault of ours. We are not liable for
delayed performance or failure to perform caused by our sub-suppliers.
The supply periods will be extended - without prejudice to our
rights resulting from default by the customer - by the period
by which the customer is in default with its obligations to
us from this contract or other contracts. This applies accordingly
to supply dates. |
| 4. |
We
shall only be in default if, for reasons for which we are responsible,
we fail to render due performance within a reasonable extension
period, following a written reminder from the customer.
If the customer suffers damages due to default for which we
are responsible, said customer has the right, with exclusion
of further claims, to claim compensation for default. For every
full week of the delay, this compensation for default will amount
to 0.25% - but totalling no more than 5% altogether - of the
value of the part of the total order which cannot be used in
due time or in a proper manner because of the delay. The customer's
claims based on gross negligence and intent are not prejudiced. |
| 5. |
Our
observance of the supply period is subject to on-time and due
performance of contractual obligations by the customer, especially
fulfilment of said customer's payment obligations. |
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| VIa.
Force Majeure |
| 1.
|
In
the event of force majeure and other unforeseeable and/or extraordinary
circumstances and/or circumstances for which we are not to blame,
we are entitled to postpone delivery by the length of the obstruction
and a reasonable start-up period or to rescind the contract,
either in whole or in part, relating to the part of the order
not yet performed. Equivalent to force majeure are also strike,
lock-out, mobilization, war, blockade, import or export ban,
lack of raw materials or fuel, fire, energy supply difficulties,
traffic blocks, disturbance of operations or transportation
and other circumstances for which we are not responsible, regardless
of whether they occur in our plant or those of sub-suppliers
or their prior suppliers. We can only invoke the said circumstances
if we notify the customer of the same immediately. |
| 2. |
The
circumstances identified above are not our responsibility even
if they occur when we are already in default. The customer can
require us to state whether we will supply within a reasonable
period or wish to rescind the contract. If we fail to make such
a statement within a reasonable period, the customer can then,
for his part, rescind the contract relating to the part not
yet performed. |
| 3. |
If,
due to the circumstances identified above, supply or rendering
of the service becomes impossible or cannot reasonably be expected,
we will be released from our supply obligation. |
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| VII.
Installation or Erection |
| Provided
that nothing to the contrary has been agreed in writing, installation
or erection at the place of application is not included in the
scope of supply. |
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| VIII.
Shipment and Passage of Risk |
| 1.
|
Provided
that nothing to the contrary has been agreed in writing, we
are liable to supply the goods ex works. Goods reported to be
ready for dispatch must be called off or collected immediately,
within no more 8 days. If this is not done, we have the right
to dispatch the material at our discretion or to exercise the
rights set forth under Section IV, para. 2. |
| 2. |
If
we have agreed to perform delivery (sale to destination), selection
of the carrier, means of transportation and route are at our
discretion, provided no other agreement has been made. The risk
passes to the customer when the goods are loaded, even if partial
deliveries are made or we have undertaken to render other services,
such as costs of shipment or delivery and installation or erection.
The unloading of the goods is the responsibility of the customer
and payable by the same. By request, we will insure the shipment
against theft, breakage, transportation damage, fire damage
and water damage and against other insurable risks, this being
in the name and for the account of the customer. |
| 3. |
We
make every effort to supply or ship the goods together but have
the right to make such partial deliveries as the customer can
be reasonably expected to accept. Each partial consignment is
deemed an independent transaction. |
| 4. |
If
loading or carriage of the goods is delayed for a reason for
which we are not responsible, we or our authorized representatives
have the right, but are not under any obligation, to store the
goods at our discretion - if necessary outdoors - at the costs
and risk of the customer and with exclusion of any liability
on our part, to take all action considered necessary to preserve
the goods and to bill the goods as if they had been delivered.
In the event of a delay in accepting performance, we are entitled
to charge customary storage fees. |
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| IX.
Defects and Warranty |
| 1.
|
The
decisive factor for establishing the contractual condition of
the goods is the time when they leave our works. The supplied
item must be inspected immediately on receipt. Notices of defects
must be submitted immediately and we must have received them
in writing no later than within two weeks of receipt of the
goods by the customer. This applies in particular to defects
in external quality and relating to the completeness of the
consignment. In addition, the recipient must report any transportation
damage to the carrier immediately after receipt of the goods
and ensure that such a report is certified on the letter of
consignment, with simultaneous registration of damages claims.
If such certification is not obtained, compensation claims will
not be recognized. |
| 2. |
Other
defects which could not have been found immediately even on
careful inspection must be reported in writing without delay,
no later than after discovery of each fault, and any processing
must be discontinued immediately. |
| 3. |
The
customer's right to submit claims relating to defects is subject
in all cases to a time limitation of 6 months, calculated from
the time of due reporting of the defect, but said right cannot
expire before the end of the warranty period. |
| 4. |
The
warranty period starts on the date of the invoice but not before
the date of passage of risk to the customer. Expiration of the
warranty period is not suspended by reworking or substitute
supply. |
| 5. |
We
give a warranty of 12 months for defects to goods including
any lack of guaranteed qualities. For reworking and substitute
supply, the warranty is valid for 6 months but does not expire
before the end of the original warranty for the item supplied.
Qualities are only deemed guaranteed if they are identified
as such in our tenders or acknowledgements of orders. |
| 6. |
For
outsourced products, our liability is initially limited to assignment
of the liability claims which we hold against the supplier of
the outsourced product. We undertake both to provide the customer
with all information required to prosecute claims and to supply
appropriate documents. This does not apply in cases in which
we ourselves have caused the defects. |
| 7. |
Our
warranty obligation is subject to the requirement that the goods
we supply are properly installed or erected by a recognized
specialist company - respecting relevant standards and recognized
technical rules - and are used in exact compliance with our
instructions. Our warranty obligation ceases to apply if the
defect has a causal link with improper alteration, processing
or other treatment. We will not accept any liability for damage
resulting from use-related wear on parts subject to natural
wear and tear or from excess strain, poor servicing, violence,
failure to observe our operating instructions, incorrect or
wrong operation or circumstances outside normal operating conditions. |
| 8. |
Our
warranty obligation also requires the customer to give an adequately
specific written description of any defect which may emerge
and to set a reasonable period for reworking or substitute supply.
We must be permitted to inspect the defect on site, either ourselves
or by sending a representative. By agreement, the customer must
allow us the necessary time and give us the necessary opportunity
to perform all repair work and substitute supply work which
we consider necessary at our reasonable discretion and must
provide us with assistants if requested to do so. |
| 9. |
Only
in urgent cases in which operational safety is at risk - of
which cases we must be notified immediately- or if we are in
default with remedying the defect does the customer have the
right to remedy the defect himself or have it remedied by third
parties and to require us to render reasonable compensation
for his costs. |
| 10. |
The
warranty which we provide only covers such parts as are proved
to have become defective as a result of material or fabrication
faults and is limited to reworking or substitute supply. |
| 11. |
If
reworking is impossible or would require an unreasonable amount
of expenditure or work or if the defect has still not been remedied
after two reworking attempts have been made or a substitute
supplied twice and the customer has set a reasonable extension
period with a threat of refusal, said customer can claim
abatement of the purchase price or cancellation of sale. Said
customer only holds damages claims in the event of intent or
gross negligence. |
| 12. |
Any
liability for damages not incurred to the supplied item itself
is ruled out. This also applies to consequential damages of
all kinds, provided we are not guilty of intent or gross negligence
and guarantees of qualities do not cover the risk of consequential
damages related to a defect. This exclusion of liability does
not apply in the cases in which we are liable under the Product
Liability Act for personal injuries and property damage to privately
used items in the event of defects in goods. |
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| X.
Other Claims |
| 1.
|
If
nothing to the contrary is specified above, all claims, especially
those relating to a product fault for which we are responsible,
are excluded if based on illegal action, positive breach of
contract and fault when making the contract or on impossibility
and inability of performance, provided we are not guilty of
intent or gross negligence. Claims of obligees under the Product
Liability Act are not prejudiced by the above. |
| 2. |
Claims
relating to outsourced products are expressly excluded, especially
if they relate to a product fault for which the manufacturer
is responsible. To this extent, we assign to the customer all
claims which we hold against the appropriate manufacturer and/or
sub-supplier. |
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| XI.
Liability of Vicarious Agents |
| To
the extent to which our liability is excluded or limited, this
also applies to our vicarious agents. |
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| XII.
Reservation of Ownership |
| 1.
|
We
reserve the title to all goods supplied until complete payment
of all our receivables and settlement of any current account
balance produced to the debit of the customer, provided that
we are entitled to such receivables and/or settlement now or
in the future for any legal reason whatsoever. This also applies
when the remuneration for certain goods consignments identified
by the customer has been paid. |
| 2. |
Resellers
may only resell the supplied goods in the course of due business.
By way of security, the reseller assigns to us the receivables
resulting from resale of our goods which are subject to reservation
of ownership, this being until payment of all our receivables
from the business relationship and settlement of any current
account balance produced to the debit of said reseller. The
fitting in properties or buildings of the goods subject to reservation
of ownership or use of the same for performance of any other
works contracts or works supply contracts by the customer constitutes
the equivalent of resale. |
| 3. |
Even
after assignment, the customer is authorized to collect such
receivables until such authorization is revoked. Our power to
collect such receivables ourselves is not affected thereby.
It can, for example, be exercised if the customer fails to meet
any terms of payment. At our request, the customer shall provide
all information necessary for collection and supply us with
the appropriate documents without delay. Said customer shall
also give the secondary debtor written notification of assignment.
In the event of compulsory execution measures by third parties
relating to our securing rights, the customer must inform said
parties of our rights and notify us immediately. Said customer
must pay the costs of measures to remedy such compulsory execution,
in particular the costs of intervention proceedings, if they
cannot be collected from the opposing party. The customer may
only assign our receivables - including sale of receivables
to factoring banks - subject to our prior written consent. |
| 4. |
Treatment
and processing of the goods subject to reservation of ownership
are performed for us as the manufacturers as defined in art.
950 of the Civil Code, without placing us under any obligations.
The processed goods are deemed to be goods subject to reservation
of ownership as defined in paragraph 1. Any acquisition of title
by the customer under art. 950 of the Civil Code is ruled out.
If the goods subject to reservation of ownership are processed,
combined or mixed with other goods by the customer, we hold
co-ownership of the new item in the proportion of the invoiced
value of the goods subject to reservation of ownership to the
invoiced value of the other goods used. For the event that our
title is terminated by combining or mixing, the customer assigns
to us now at the present time the ownership rights which he
holds to the new stock or item, this being to the amount of
the invoiced value of the goods subject to reservation of ownership,
and will store said goods for us free of charge. The co-ownership
rights created in this way are deemed to be goods subject to
the reservation of ownership as defined in paragraph 1. |
| 5. |
By
way of security, the customer assigns to us the receivables
resulting from resale of the product partly or wholly made from
our goods, this being until payment of all our receivables and
settlement of any current account balance produced to the debit
of the customer. Section XII, para. 3 shall apply. |
| 6. |
If
the goods or additional plant which we supply is combined with
a property or fitted in a building or heating system, this is
deemed to be done for a provisional purpose as defined in art.
95 of the Civil Code, with the intention of separation again
as soon as we assert our claim to reservation of ownership.
If the building does not belong to the customer, said customer
shall make it clear to the owner that such combining or fitting
of the goods we have supplied only serves a provisional purpose. |
| 7. |
If
our goods subject to reservation of ownership are built into
a property or building, the customer assigns to us now at the
present time the remuneration claim he holds against the third
party, this being to the amount of the invoiced value of our
goods, including the right to the granting of a debt-securing
mortgage. In addition, said customer undertakes to transfer
an existing debt-securing mortgage to us.
The customer also assigns to us now at the present time his
work compensation claim to the amount of the invoiced value
of the goods we have supplied, and we hereby accept this assignment
now at the present time. |
| 8. |
If
the value of the securities existing for us exceeds our receivables
by a total of more than 20% and this is not only temporary,
we will, on request, return securities of our choice to cover
the appropriate amount. |
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| XIII.
Return of Goods |
| Goods
which have been duly ordered and supplied will not generally
be taken back. If, however, we do decide to take goods back
in exceptional cases, we will pay 90% of the invoiced amount
for perfect and unused goods, with deduction of expenses incurred
for freight, transportation damage, etc. |
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| XIV.
Binding Force of the Contract |
| 1.
|
Partial
invalidity does not lead to invalidity of the whole contract. |
| 2. |
Any
invalid term is to be replaced as indicated by the purpose of
the other terms. |
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| XV.
Choice of Law |
| 1.
|
The
contract shall be governed solely by German law. |
| 2. |
The
terms of the UN Convention on Contracts of Sale and of foreign
law are excluded. |
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| XVI.
Place of Fulfilment/Legal Venue |
| If
the customer is a fully qualified merchant, a legal body under
public law or a special public fund, the following applies: |
| 1. |
Provided
that nothing has been agreed in writing to the contrary, the
place of fulfilment for all obligations under this contract
is the seat of our works. |
| 2. |
In
relation to all disputes resulting from the contractual relationship,
legal action shall be filed with the court having jurisdiction
over our main seat of business. We also have the right to take
legal action against the customer at his general legal venue. |
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| XVII.
Protection of Data |
| The
customer agrees to our processing and using the customer's personrelated
data obtained in the course of or in association with our business
relationship, this being to the extent permitted under the Federal
Data Protection Act. |
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