GENERAL TERMS AND CONDITIONS OF SALE
1. Area of Applicability
Deliveries of the seller shall only take place according to the following sales conditions. Agreements or business terms and conditions of the purchaser which deviate from these terms and conditions shall require in order to be effective the express written approval of the seller to the extent they conflict with these terms and conditions. The sales terms and conditions of the seller shall become a component of the contract at the latest with the acceptance of the delivery.
2. Contract
2.1 The offers of the seller shall not be binding. Delivery conditions of the purchaser shall only be effective if they are confirmed by the seller in writing.
2.2 The price in force on the day of the delivery plus the taxes to be openly shown in the invoices shall be considered as agreed upon. Price lists presented shall be subject matter of the contract so far as they do not conflict with the general terms and conditions of sale and/or the separate agreements.
3. Duties of the Purchaser
3.1 If the purchaser fails to accept the delivery, the seller shall be entitled after fixing a grace period to rescind the contract or to claim damages. In the latter case the seller is entitled to claim either without proof of damage 10 % of the agreed invoice amount pursuant to clause 2.2 or compensation of the actual damage suffered. In lieu of these rights the seller may, within a reasonable extended delivery period agreed upon with the purchaser, carry out a similar delivery according to the agreed terms and conditions. The purchaser shall bear the costs of a second or further delivery.
3.2 The delivered goods may only be sold unchanged in the original packaging.
4. Payment
4.1 The invoiced amounts shall be paid by means of a bank debit entry or pursuant to the conditions of the seller in the confirmation of the order or in the invoice respectively. Payment periods named in the confirmation of the order and/or in the invoice in particular also for the time-limit calculation with respect to the discount deductions, shall begin with the invoice date. Discount deductions agreed upon shall only be permissible if no other invoices which are already due are to be paid. In the case of default in payment, the seller shall be entitled to claim interest in the amount of 4 % over the actual key rate of the European Central Bank Default interest shall be due at once. The purchaser may only withhold or make a set-off with those claims which are undisputed or non-appealably assessed.
4.2 Irrespective of the agreed method of payment, the rendering of security may also be requested at any time prior to the completed delivery in the case that after the conclusion of the contract reasonable doubt arises regarding the solvency or the creditworthiness of the purchaser, agreed payment and delivery terms are not adhered to in material respects or material changes in the business circumstances of the purchaser occur. In case the purchaser refuses to render security, the seller is entitled to ask for immediate payment or to rescind completely or partially any current contracts with the purchaser respectively to claim compensation from the purchaser for his expenses or to claim damages due to non-performance. The seller shall be free to choose which right he will exercise with respect to each individual contract.
5. Delivery
5.1 In the absence of special instruction from the purchaser, the selection of the route of transport shall be made by seller in his discretion after a due assessment of the circumstances. The connection charges for tank wagons, freight charges at the place of destination, areal freight charge and the supplementary freight charges for express goods and air freight shall in each case be borne by the purchaser.
5.2 For the determination of the weight of the delivery, the weight determined at the dispatching at the seller or warehouse shall be determinative.
5.3 The agreed delivery time shall begin with the sending of the confirmation of the order, however, not prior to the production of the documents, authorisations and releases to be furnished by the purchaser. If an agreed delivery date is exceeded by more than two weeks, the purchaser shall be entitled to set a grace period for the seller of two additional weeks together with the notice to rescind the contract in case of non-performance. If the delivery obligation has not been fulfilled by the expiration of the grace period, then the purchaser shall have the right to rescind the contract. The rescission must be declared in writing without undue delay after the expiration of the set grace period, at the latest within two weeks after the expiration of this time limit. Occurences beyond the seller’s control, through which the delivery or its transport is impossible or unreasonably difficult, shall give the seller the right to rescind the contract or to delay the delivery until the hindrances are removed. These circumstances shall be communicated to the purchaser by the seller without undue delay. Partial deliveries which have already been made shall be considered as an independent transaction; the settlement of the partial delivery may not be refused on account of the parts still outstanding. In the event of the postponement of the delivery due to the reasons mentioned above, a right of the purchaser to set a grace period and to rescind does not arise. Claims for damages based on delay of seller shall be limited to the typical foreseeable damage.
6. Passing of the Risk
The risk shall pass – if nothing otherwise is agreed – by dispatching the goods from the seller’s factory or warehouse. The purchaser shall bear the risk for all deliveries sent back during the return transport as well as for the packing during the transport there and back.
7. Warranty
7.1 Complaints about the quality shall be made to the seller without undue delay, at the latest within eight days after receipt of the delivery at the place of destination. At the same time a sample of the faulty goods shall be sent to the seller. If at the place of dispatch samples were taken by a neutral sampler, then these alone shall be authoritative for the appraisal of the delivery. Equivalent to neutrally taken samples shall be remaining original pieces on hand with the purchaser of the seller’s delivery which was the basis of the processing or further shipment. The same shall apply for remaining pieces of the production batch with the seller out of which the delivery objected to originated. In case of a fault the purchaser may – if no other agreements have been made – only demand subsequent delivery of the faulty goods. If the subsequent delivery does not eliminate the fault, the purchaser shall be entitled to a reduction or rescission. With respect to all deliveries within the scope of eliminating the fault, the stipulated liability for faults shall apply. If warranted characteristics are lacking, the purchaser shall have the right to rescission, reduction or to damages alternatively. However, liability for consequential harm caused by a fault shall only be incumbent on the seller to the extent this was subject matter of warranty declaration. Otherwise, claims for indirect or direct damages from positive violation of contractual duty from violation of duties with respect to contract negotiations and from tort shall be excluded as far as there is no mandatory liability for the seller based upon his intent or gross negligence, according to the Product Liability Act (Produkthaftungsgesetz) or with respect to the violation of material duties. To the extent the liability of the seller is precluded, this shall also apply for the benefit of his employees in the event they are held directly liable by the purchaser. Claims as a result of the lack of warranted characteristics or from promises of guarantee may only be asserted if the warranted characteristics or promises of guarantee are acknowledged by the seller in writing.
7.2 The unhesitating acceptance of the delivery on the part of the railroad, shipping company or other carrier shall preclude the liability of the seller due to improper packing or loading as far as the seller is under no mandatory liability for intent or gross negligence.
7.3 To the extent an EAN code is used the seller shall take care of the legibility. Liability for the legibility cannot, however, be assumed on the part of the seller.
7.4 The sellers oral and written advice in application techniques shall be given without any obligations and shall not release the purchaser from his own examination of the products for their suitability. The foregoing shall also apply when the delivered goods are generally recommended for a specific purpose. If liability of the seller should nevertheless come into question, the procedure of the stipulated liability for defective deliveries apply. In addition, claims for damages shall only be admitted if the seller has acted with at least gross negligence. It shall be incumbent on the purchaser alone to observe any protected privileges of third parties. e.g. application patents (Anwendungspatente), and statutory provisions with respect to the processing of the delivery.
8. Retention of Ownership
8.1 The delivered goods shall remain the property of the seller until all outstanding claims arising from the business relation including interest and costs have been fully settled respectively until cheques which have been given for this purpose have been completely cashed. The seller shall be entitled to assert the retention of ownership through a simple declaration. The retention of ownership shall also extent to goods which are resold and to products emerging through processing. With respect to combination or mixture with material which does not belong to the seller, the seller shall without exception acquire co-ownership in the manufactured new items in the ratio of the value of the reserved product to the value of the new item. In this case the purchaser shall be considered in this respect as the custodian for the seller. If with respect to a combination of several items the seller does not acquire co-ownership, then the purchaser shall already now assign the co-ownership share specified under sentence 4 to the seller.
8.2 The purchaser shall be revocably entitled to sell the delivered goods in the proper course of business. Each other disposal, in particular a pledging, chattel mortgage or relinquishment by means of exchange, shall not be allowed. The seller shall be notified without undue delay regarding pledges undertaken by third parties – also after mixture or processing – as well as each other impairment of the rights in the delivery which is the property of the seller. The claims and rights of the purchaser from a resale of the delivered goods and business relations to other buyers shall already now be assigned to the seller, regardless of whether the goods are resold, unprocessed or processed. In case the goods shall be sold by the purchaser together with other goods which are not the seller’s property, the assignment of the purchasing price shall only be valid for the value of the goods being property of the seller. The purchaser shall be revocably empowered to collect all debts out of the resale. The collection power and the right to process shall also extinguish without particular revocation when the purchaser stops his payments, in case of clause 4.2 and in case of filing for bankruptcy, of a judicial or extra-judicial composition proceeding, of a cheque and draft protest or of a completed seizure of property of a judgement debtor by court authorities. Thereafter, incoming assigned outstanding amounts shall be accumulated at once in a special account with the separate designation to be given by the seller. Upon request of the seller, the purchaser shall inform the seller of the debtor of the assigned claim in writing without undue delay and notify the assignment to the debtor. The seller agrees to release according to his choice the security given to him, upon request of the purchaser so far as the realisable value exceeds by 20 % the entire claim of the seller to be respectively secured.
8.3 If the purchaser should default on his payment obligation to the seller or if he violates on of the duties resulting out of the agreed retention of ownership, then the entire remaining debt shall become due at once. In these cases, save as provided in § 107 paragraph 2 Insolvency Act (Insolvenzordnung), the seller shall be entitled to demand the return of the delivery and to pick it up from the purchaser. The purchaser shall not have any right to possession. The seller shall be entitled to inform the purchaser’s customers of the assignment of the purchaser’s demands to the seller and to collect the demands. A possible taking back of goods will only be effected for reasons of security and shall not be interpreted as withdrawal from the contract, even if instalment payments have subsequently been allowed.
9. Returnable Packaging / Pallets
9.1 To the extent an agreement is concluded regarding making the products available on pallets, the seller may deliver at his choice parcels of goods on Euro-Pool-Pallets measuring 800 x 1200 mm or on EW-10-one way pallets. Delivery shall only take place against counter-exchange, i.e. for the pallets delivered with the products, the same number of undamaged, empty pallets (in each case only Euro-Pool-Pallets) must be furnished in exchange. Damaged but reparable pallets which seller receives back shall be invoiced at the repair cost, and pallets which are not reparable shall be invoiced at replacement cost. Proof that in the individual case already damaged pallets were received shall be incumbent on the purchaser. With respect to lost pallets, the purchaser shall be obliged to provide replacement or to pay the replacement costs to the seller. In case delivery takes place on EW-10-one way pallets the purchaser shall be obliged to place the products from one pallet to another and to dispose the one way pallets.
9.2 The purchaser has the duty to discard the various packages accordingly at his expenses.
10. Closing Provisions
10.1 If individual provisions of these delivery conditions or of this delivery transaction are or become void, then the effectiveness of the other provisions shall not be affected thereby. The contract parties shall be obliged to agree on a new provision which comes nearest to the purpose pursued by the void provision.
10.2 Place of performance for all obligations arising out of a delivery transaction and for the venue for all disputes in connection with a delivery transaction and/or a summary procedure where the plaintiff relies entirely on documentary evidence shall be exclusively <st1:place w:st=“on“>Hannover</st1:place>, as far as nothing else is agreed. The relations between the seller and the purchaser shall be subject exclusively to the law of the Federal Republic of Germany. Application of the provisions of the Convention Relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods and respectively, the UN-Convention on Contracts for the International Sale of Goods shall be precluded.