General Terms and Conditions of Sale

Version as of: May 2012

§ 1 General

  1. All goods, services and quotations are provided exclusively on the basis of these Terms and Conditions. In the case of permanent business relationships these terms and conditions also apply to future transactions to which no specific reference is made if they were included in an order earlier confirmed by the Vendor. Differing terms and conditions on the part of the Purchaser not acknowledged expressly in writing by the Vendor are not binding on the latter even if not expressly rejected by him.
  2. Orders are binding only on the basis of the Vendor’s order confirmation. Amendments and addenda must be in writing. All quotations are subject to change without notice unless designated binding offers.
  3. The Purchaser's order is binding on him for a period of 6 weeks. The said period commences upon receipt of order by the Vendor.
  4. Should any provision contained in our General Terms and Conditions of Sale prove to be or become invalid the validity of all remaining provisions shall not be thereby affected.
  5. Rights and obligations flowing from business relations with the Vendor may only be transferred to third parties with the written approval of the Vendor.

 

§ 2 Prices

  1. If nothing to the contrary emerges from the Confirmation of Order our prices are "ex stock" or "ex works" and exclusive of shipping and handling charges, customs or excise duty, packaging and are liable to the prevailing rate of statutory VAT.
  2. We reserve the right to increase prices equally in line with changes in the German Federal Statistical Office consumer prices index.
  3. In the case of new orders (= follow-on orders) the Vendor is not bound to abide by previous prices.
  4. For pricing the respective weights and quantities calculated by the Vendor are definitive.
  5. In the absence of agreement to the contrary prices are stated in EURO.

 

§ 3 Payment Terms

  1. All payments must be made in EURO by credit transfer to the Vendor’s account only and stating the invoice number.
  2. In the absence of agreement to the contrary the purchase price for goods or other services is payable without deduction within 30 days from the invoice date. Precondition for any discount deduction agreed is settlement of all undisputed accounts payable at an earlier date. No discount is granted for conditional payments.
  3. If the agreed payment date is exceeded, at the latest 30 days from receipt of invoice or goods, the Purchaser shall be deemed to be in default, no reminder being required. Default interest is 8 percentage points above base rate unless the Vendor is in a position to demonstrate a greater loss.
  4. The Purchaser may only offset or claim a right of retention if his claims are determined to be undisputed or legally binding.
  5. Failure to comply with payment terms and conditions or circumstances which give grounds for serious doubt in respect of the Purchaser’s creditworthiness results in immediate payment maturity of all Vendor accounts receivable. In addition the Vendor is entitled to demand payment in advance for deliveries as yet outstanding or provision of a security and also to withdraw from the contract following an appropriate period of grace for payment and further more to forbid the Purchaser to resell the goods and to repossess goods not paid for at the cost of the Purchaser.
  6. Purchaser’s payments – irrespective of differing repayment provisions on the part of the Purchaser – are initially offset against default interest and costs and thereafter against the earliest claims due of the Vendor against the Purchaser.

 

§ 4 Obligations to supply and accept delivery

  1. Details in respect of delivery dates are not binding. Delivery dates are only binding if agreed in writing and expressly designated as binding. Upon notification of readiness for shipment the delivery date is deemed observed if shipment fails to take place in the absence of blame on the part of the Vendor. Any delivery date agreed shall be extended as appropriate if the Purchaser fails to fulfil acts of cooperation incumbent upon him or fails to provide the same in time, in particular if
    • The Purchaser fails to provide information or documentation needed by the Vendor to fulfil the contract or if the Purchaser amends such information or documentation retrospectively and thereby causes a delay in provision of goods or services.
    • The Purchaser or third parties fall into arrears with preliminary work incumbent upon them.
    • The Purchaser fails to make agreed payments in time.
  2. Should the Vendor fall into default in delivery the Purchaser shall be entitled, following establishment of an appropriate period of grace for delivery, to withdraw from the contract. Damages claims are excluded unless the Vendor acts with intent or is guilty of gross negligence.
  3. Appropriate partial deliveries are permissible.
  4. In the case of call-off orders with no agreement of term, production batch sizes or delivery acceptance dates the Vendor may demand binding definition in that regard three months following confirmation of order. Should the Purchaser fail to meet the said request within three weeks the Vendor shall be entitled to set a two-week period of grace and following expiry thereof to withdraw from the Contract without prejudice to the right to claim damages. Advance payments made shall be refunded minus costs incurred and damages claims.
  5. Should the Purchaser fail to meet his obligation to take delivery the Vendor, without prejudice to any other rights and following an appropriate period of grace to accept delivery, shall be entitled to withdraw from the contract and to demand damages. The Vendor shall be entitled to freely sell the goods concerned.
  6. In the event of force majeure and other unforeseeable, extraordinary and circumstances in the absence of blame – e.g. difficulties in obtaining materials, operational disruptions, strikes, lockouts, lack of means of transportation, cases of official interference, energy supply difficulties etc., even if these occur at sub-suppliers - the delivery date shall be extended to an appropriate degree if the Vendor is prevented from meeting his obligations on time. If supply of goods or services is rendered impossible or unreasonable as a result of the above circumstances the Vendor shall be released from the obligation to supply. Should the delivery date be extended or should the Vendor be released from the obligation to supply the Purchaser may not base any damages claims thereon. The Vendor may only have recourse to the circumstances cited if he informs the Purchaser immediately. Any advance payments made by the Purchaser shall be refunded by the Vendor immediately.

 

§ 5 Packaging, containers, shipment and transfer of risk

  1. In the absence of agreement to the contrary choice of packing, shipment route, nature of transportation and containers shall be at the Vendor's sole discretion. If containers or pallets are provided by the Vendor these are provided on a loan basis and must be returned to the Vendor immediately, otherwise the Vendor shall be entitled to invoice the said containers/pallets to the Purchaser at appropriate prices.
  2. If provision of containers by the Purchaser is agreed the said containers must be received at the Vendors dispatch point in good time and free of charge. The Vendor is under no obligation to examine, clean or repair, but is entitled to charge this to the Purchaser however.
  3. Risk shall transfer to the Purchaser including in the case of carriage paid delivery at the point of departure from the supplying factory. In the event of delays in shipment for which the Purchaser is responsible, risk transfers at the point of notification of readiness for shipment.

 

§ 6 Retention of Title

  1. Goods remain the property of the Vendors up to the point where all claims due to the Vendor from the Purchaser are met even if the purchase price has been paid for specifically itemized accounts receivable. In the case of running accounts the reserved title to the goods (goods subject to reservation of title) shall be deemed to act as security for the Vendor’s account balance.
  2. Any adaptation or processing on the part of the Purchaser shall be to the exclusion of acquisition of title under Sec. 950 BGB as authorized by the Vendor and the latter shall accordingly acquire joint title in the ratio of the net invoice value of the adapted or processed item to the resultant item, which shall serve as goods subject to reservation of title as security for the Vendor’s claims as defined in Para. 1.
  3. In the event of adaptation (combination/amalgamation) by the Purchaser with other goods not belonging to the Vendor the provisions contained in Secs. 947 and 948 BGB shall apply with the consequence that the proportion of the Vendor’s joint title in respect of the new item shall thenceforth apply as goods subject to reservation of title as defined in this present condition.
  4. The Purchaser is permitted to utilize and use goods subject to reservation of title in the normal course of business operations. The latter must be adequately insured for the duration of reservation of title against liability risks and the eventuality of damage or loss with the proviso that rights ensuing from the insurance are due to the Vendor. Any corresponding evidence of concluding such insurance cover shall be provided by the Purchaser. Should the Purchaser fail to arrange the said insurance cover by at the latest the point of delivery of the goods the Vendor shall be accordingly entitled to insure the goods subject to reservation of title himself – at the Purchaser’s cost.
  5. For the duration of the period of reservation of title the Purchaser hereby undertakes to maintain the goods subject to reservation of title in proper condition at his own cost, to immediately lastingly rectify all damage occurring immediately and to desist from any form of use which might lead to excessive wear and tear or unusual damage to the goods subject to reservation of title.
  6. In general terms the Purchaser is forbidden to resell goods subject to reservation of title in the normal course of business.
  7. Should the value of securities furnished for the Vendor exceed the latter’s total accounts due by more than 20% the Vendor hereby undertakes at the Purchaser’s request to release securities at the Vendor’s choice.
  8. Forms of d distraint or confiscation of goods subject to reservation of title by third parties must be notified to the Vendor immediately. Intervention costs incurred as a result shall in all cases be charged to the Purchaser unless borne by third parties.
  9. In the event of payment default on the part of the Purchaser and after establishing an appropriate 7-day period of grace the Vendor shall be entitled to revoke authorization in respect of use, processing, combination and amalgamation under Paras. 2 to 5 with immediate effect. In such event the Purchaser undertakes at the Vendor’s request to surrender the goods subject to reservation of title immediately.
  10. If the Vendor exercises his retention of title under the above provisions by recovering goods subject to retention of title he shall be entitled to freely sell or have auctioned the said goods subject to retention of title. Recovery of goods subject to retention of title shall be at the rate of proceeds achieved subject however to a maximum of the delivery prices agreed. The right to further damages claims, in particular lost profit, is reserved. Recovery of goods subject to retention of title only involves withdrawal from the contract if this is expressly stated by the Vendor in writing. Any Vendor claims (such as damages on the basis of lost profit) shall initially be offset against payments already made by the Purchaser.

 

§ 7 Guarantee

  1. Agreements regarding the properties and condition of the item supplied must be stated in writing in the confirmation of order. Reference to technical standards shall serve as the specification. Details contained in product descriptions, brochures and technical information sheets including assembly instructions are non-binding.
  2. If the Vendor has acted as consultant to the Purchaser outside his contractual services he shall be liable for the functionality and suitability of the item supplied only in the event of express written assurance. Definitive is the state of the art at the point in time of order acceptance. In respect of the Vendor’s liability for damages § 8 applies.
  3. The Purchaser must check whether the goods supplied are of the contractually agreed properties and condition and are fit for the intended operational purpose. Deliveries must in all cases be examined in the presence of the delivery agent for completeness and cases of damage. Any cases of quantitative shortfall/damage must be clearly certified by the delivery agent in the accompanying paperwork.
  4. Notices of defect must be claimed against the Vendor immediately following receipt of delivery and in the case of hidden defects immediately upon discovery.
  5. Defect claims are time-barred 12 months from the point of acceptance of delivery; at the latest with effect from transfer of risk. The Vendor is not liable for any guarantee as to when and to what extent the Purchaser can have recourse vis-à-vis his customer in respect of time-barring of defect claims. For parts installed during rectification work defect claims are time-barred with time-barring of defect claims in respect of the item purchased, at the earliest one year from installation. For used items no defect guarantee is assumed by the Vendor.
  6. In the case of justified defect notifications the Vendor undertakes to perform rectification work or replacement free of charge at his own discretion. Should he fail to meet these obligations within an appropriate period of grace the Purchaser shall be entitled following expiry to no avail of an appropriate period of grace either to reduce the purchase price or to withdraw from the contract. Parts replaced shall be returned to the Vendor on request freight collect.
  7. The Vendor shall bear the costs of rectification or installation of spare parts at the Vendor’s factory or at a Vendor’s authorized service workshop. The Purchaser shall convey or send the goods the subject of complaint following notification of the workshop responsible to that location at his own cost. Should the defect complaint prove to be justified the Vendor shall refund the costs of the most economical means of shipment of the goods the subject of complaint.
    Rectification or replacement part installation costs at the installation location of the purchase item shall be borne by the Vendor only in the event of a separate agreement in this regard. Costs incurred due to the fact that the purchase item was transferred by the Purchaser to a location other than the original delivery location shall in any event be charged to the Purchaser and similarly costs for necessary replacement of consumables or materials subject to wear and tear such as lubricants, hydraulic oil, filters and the like.
    Costs for replacement machinery or stoppage costs in respect of the purchase item for the duration of rectification work shall only borne by the Vendor if and to the extent that he has caused such costs through intent or gross negligence.
    In total the Vendor’s liability for all consequential losses in connection with the defective nature of the product is limited to 2% of the respective sale value.
  8. No defect claims exist if the fault is caused by
    • Overstressing or improper treatment of the purchase item.
    • Natural wear and tear or adjustments
    • Failure to follow regulations in respect of treatment, servicing and maintenance of the purchase item (e.g. in accordance with operating instructions, maintenance schedules) or failure to comply with specialist and timely implementation of customer services. • Undertaking modifications or corrective maintenance by the Purchaser in the absence of prior consent on the part of the Vendor, in particular fitting parts.
    • Undertaking customer services, servicing and maintenance work by a company not authorized by the Vendor.
    In all the above cases the guarantee for the entire machine/plant lapses.
  9. Only in order to prevent disproportionately major damage is the Purchaser entitled, following prior agreement with the Vendor, to undertake rectification himself and to request compensation of appropriate costs in that regard.

 

§ 8 General limitation of liability

In all cases in which the Vendor is liable for damages contrary to the above provisions on grounds of the contractual or statutory basis of the claim - i.e. also as a result of unlawful action - he shall be liable only if he, his legal representatives or vicarious agents are guilty of intent or gross negligence. This limitation of liability does not apply in the event of damages arising from injury to life, physical injury or injury to health attributable to negligent breach of obligation on the part of the Purchaser or any intentional or negligent breach of obligation on the part of any legal representative or vicarious agent of the Vendor.

§ 9 Place of Performance and Legal Venue

  1. Place of performance for all mutual obligations of the parties is Schesslitz, Germany.
  2. Legal venue is Bamberg, including for actions in the documentary evidence, cheque or bills of exchange process. The Vendor is also entitled however to bring an action at the domicile of the Purchaser.
  3. The definitive contractual language is German.
  4. The laws of the Federal Republic of Germany apply. Application of the UN Convention on the International Sale of Goods is excluded.

General Purchasing Terms and Conditions

Effective: May 2012

§ 1 General – Scope of validity

  1. Our general purchasing terms and conditions apply exclusively; we do not accept any conflicting or deviating supplier's terms and conditions unless we expressly agree to these in writing. Our general purchasing terms and conditions apply also if we accept supplier's delivery without any reservations even if we are aware of conflicting or deviating supplier's terms and conditions. They apply also for all future business relations even if they are not expressly agreed upon once again.
  2. All covenants agreed upon between our company and the supplier in performance of this agreement will be fixed in writing in this agreement.
  3. Our general purchasing terms and conditions apply exclusively to our relations with business undertakings.

 

§ 2 Quotations – tender documents

  1. The supplier undertakes to accept our orders within a period of two weeks.
  2. We reserve all proprietary rights and copyrights to images, depictions, calculations and other documents; these may not be made accessible to third parties without our express written consent. They will be used exclusively for production according to our purchase orders; they will be returned to us without further request after our purchase order is completed. They will be kept secret from third parties; the covenant in § 9 sec. 4 shall also apply.

 

§ 3 Prices – terms of payment

  1. The price stated in the purchase order shall be binding. If no other written agreement has been made, the price shall be "free domicile" including packaging. Return shipment of empties and packaging material, unless disposable packaging, will be made freight collect at the supplier's expense.
  2. Prices shall be understood to be stated without the applicable VAT.
  3. We will process invoices only if we receive them apart from the goods shipment and if the purchase order number is stated in these in compliance with our order specifications. The supplier shall be responsible for all consequences arising from non-compliance with this obligation unless he is able to demonstrate that such act arose from circumstances beyond his sphere of influence.
  4. Unless agreed upon differently in writing, we will pay the purchase price minus a 3% discount on the 15th day of the month following the month of delivery or net within 60 days after receipt of the invoice.
  5. We are fully entitled to all statutory offsetting and retaining rights. We are authorized to assign all claims arising from the purchase agreement without the supplier's consent. The supplier is not authorized to assign claims from the contractual relation to third parties without our prior written consent.

 

§ 4 Delivery / delivery schedules

  1. The supplier must perform the contractual obligation himself. Subcontracting by the supplier is admissible only with our express written consent.
  2. The deliveries must be in compliance with the quality, quantity and scheduling stated in the purchase order.
  3. For orders not yet entirely performed, we are authorized to request changes related to design, delivery and delivery schedules provided we can demonstrate to have reasonable interest in such modifications, that the supplier has the technical capacities and abilities to implement such modifications, and that the request for such modification is feasible.
  4. The agreed delivery schedules shall be binding; the supplier warrants to provide for conditions allowing for punctual delivery.
  5. In case of delayed delivery, we may resort to statutory relief. We are especially entitled, after fruitless expiration of a grace period, to claim damages due to delay in addition to contract performance or to claim damages for non-performance in lieu of contract performance or to step down from the contract. In case we claim damages, the supplier is entitled to demonstrate to us that he is not responsible for the violation of contractual duties.
  6. Additional freight costs for rush or express deliveries required due to non-compliance with the stipulated delivery deadlines will be borne by the supplier.
  7. The supplier is obligated to inform us immediately as soon as circumstances arise (or as soon as he becomes aware of these) which might lead to his inability to comply with the agreed delivery schedule.

 

§ 5 Passage of risk – documents

  1. Unless agreed upon differently in writing, the delivery shall be made "free domicile"; passage of risk becomes effective as soon as the goods have been properly delivered and received.
  2. The supplier is obligated to state our purchase-order number accurately on all shipping papers and delivery notes. Should the supplier fail to do so, we shall not be responsible for any delays in processing.

 

§ 6 Quality

  1. The supplier warrants that his goods and services have the characteristics, qualities and features specified in the purchase order and that they are in compliance with our stated specifications, drawings, samples and other descriptions.
  2. The supplier will perform quality inspections which are appropriate in terms of nature and scope and which meet state-of-the-art requirements.
  3. In case initial samples or approval samples are requested, the supplier may begin with series production only after having received our formal written approval.
  4. We expect the supplier to orient the quality of the products he delivers to us towards the respective state-of-the-art status and to notify us about potential improvements and technical modifications. All and any modifications of the delivery items must previously be approved by us in writing.
  5. The supplier warrants and guarantees compliance with all statutory safety and environmental regulations applicable in Germany.

 

§ 7 Inspections for defects – liability for defects

  1. We are obligated to inspect the goods within a reasonable period of time for any visible quality and quantity deviations. A complaint will be considered made in due time if it is received by the supplier within a period of ten workdays after receipt of the goods or, in case of hidden defects, after these are detected.
  2. We may avail ourselves without restrictions of all statutory claims for defects. In any case we are entitled at our sole discretion to demand correction of defect by the supplier or to demand delivery of new items. This shall not affect our entitlement to our right to recover damages, specifically to compensation in damages in lieu of contract performance.
  3. We are authorized to correct the defects ourselves at the supplier's expense in particularly urgent cases or if time is of essence.
  4. The period of limitation shall be 36 months starting at the passage of risk.

 

§ 8 Product liability – indemnification – liability insurance

  1. If the supplier is responsible for a product defect, he is obligated to save us harmless from third-party claims for damages upon first request if the cause lies within the supplier's organizational and responsibility domain and if the supplier himself is liable in respect of rights and duties as to third parties.
  2. In the scope of his liability for claims as defined in sec. 1, the supplier is also obligated to refund any expenses as defined in §§ 683, 670 BGB (German civil code) and §§ 830, 840, 426 BGB, which we incur through or in context with any recall action imitated by us. We will inform the supplier - to the extent possible and reasonable - about content and scope of the recall action and will give him the opportunity to comment. This shall not adversely affect any other statutory claims.
  3. The supplier undertakes to take out a product liability insurance with an insured sum of 10 million € per personal injury/property damage - blanket insurance- ; should we be entitled to more extensive claims for damages, these shall not be adversely affected.

 

§ 9 Industrial property rights

  1. The supplier warrants that no third-party rights in the Federal Republic of Germany and the EU are violated in context with his deliveries.
  2. Should any claims be put forward against us by third parties for violation of industrial property rights, the supplier is obligated to save us harmless against these claims upon first written request. We are not authorized to come to any agreements with the third party - especially to come to an out-of-court agreement - without the supplier's consent.
  3. The supplier's obligation to save us harmless relates to all expenses which we necessarily incur through or in context with the assertion of claims against us by third parties.
  4. The supplier's aforementioned obligations to save us harmless shall not apply if the supplier manufactured the items of delivery on the basis of drawings, models or identical descriptions or specifications made available by our company and the supplier doesn't know or - in context with the products he developed - doesn't need to know that they violate third-party rights.
  5. The period of limitation for these rights of indemnity shall be three years starting at the time we become aware of the assertion of third-party claims.

 

§ 10 Retention of ownership – provision of materials – tools – obligation to maintain secrecy

  1. We retain ownership of all parts (conditional commodity) and tools provided by us. Processing or conversion by the supplier is done for our purposes. In case our conditional commodities are processed with/incorporated into items to which we have no ownership rights, we acquire co-ownership rights in the new item in proportion of the value of our item (purchase price plus VAT) to the other processed items at the time they are processed.
  2. If the item we provide is irreversibly incorporated with other items to which we have no ownership rights, we acquire co-ownership rights in the new item in proportion of the value of the conditional commodity (purchase price plus VAT) to the other incorporated items at the time they are incorporated. If this incorporation is such that the supplier's item is the principal item, it is considered agreed that the supplier conveys proportional co-ownership rights to us. The supplier safeguards the sole ownership or co-ownership rights for us.
  3. The supplier is obligated to use the tools exclusively for the production of the items we order. The supplier is obligated to insure our tools against fire, water and theft at reinstatement value at his own expense. At the same time, the supplier already now assigns all claims for compensation from this insurance to us; we hereby accept such assignment. The supplier is obligated to have any required maintenance work and inspections as well as all repair and service work done in due time at his own expense. The supplier will immediately notify us about any defects. Should he culpably fail to do such, this shall not adversely affect any claims for damages.
  4. The supplier is obligated to keep all provided depictions, drawings, calculations and other records and information in strict confidence. They may be disclosed to third parties only with our explicit approval. This obligation to maintain secrecy is also in effect after expiration of this agreement. The obligation ceases if and to the extent the know-how incorporated in the provided depictions, drawings, calculations and other records becomes general knowledge.
  5. To the extent our collateral rights as defined in sec. 1 and/or sec. 2 exceed the purchase price of all our conditional commodities not yet paid by more than 10%, we are, upon request by the supplier, obligated to release the collateral rights at our discretion.

 

§ 11 Place of jurisdiction – place of performance – applicable law

  1. To the extent the supplier is a trader as defined in the German Commercial Code (HGB), our registered office shall be the place of performance and exclusive place of jurisdiction for deliveries and payments (including check lawsuits) as well as all disputes between the parties related to the agreements concluded between these. However, we are entitled to bring legal action against the supplier at his registered office.
  2. The laws of the Federal Republic of Germany shall apply exclusively. The CISG United Nations Convention on Contracts for the International Sale of Goods as of April 11, 1980 shall not apply.
  3. Should one or several of the clauses of these General Standard Terms and Conditions be or become ineffective or unfeasible, this shall not affect the validity of the remaining clauses of the General Standard Terms and Conditions.

 

 

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